RE AKHI

HCAL 3003/2018

[2021] HKCFI 2189

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 3003 OF 2018

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DECISION

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Introduction

1.  This is the applicant’s application by summons dated 18 June 2021 for extension of time to appeal the order of this Court dated 20 May 2021 (the “Order”) refusing her application for leave to apply for judicial review.

2.  Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.  By 18 June 2021, the time to appeal has expired.  The application for leave to appeal is fifteen days out of time. 

3.  In Jagg Singh and Torture Claims Appeal Board/non-Refoulement Claims Petition Office^[1], the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted. 

Length of the delay and reasons for delay

4.  In her supporting affirmation, the applicant said that she “did not receive the Order and judgment within 14 days”.  She did not say when and how she came to receive the Order.  Directions were given to the applicant to file an affirmation explaining the reasons for the late application and to exhibit proposed grounds of appeal.

5.  In her affirmation dated 5 July 2021, the applicant alleged that she received the Order on 14 June 2021 from the landlord.  She explained that she lived in a subdivided flat.  The landlord did not provide the tenants with the key of the letter box.  He collected the mails and distributed them once or twice a month whenever it is convenient for him.

6.  The applicant occupies Room H of the premises which suggests that there are at least eight units in the premises.  The landlord has to visit the premises a number of times a month to collect rent from the various tenants, say once a week.  It would be convenient for the landlord to pick up the mails and distribute them at the same time or to leave them at some convenient area for the tenants to pick up themselves.  A practical arrangement would be for one tenant to be given the key and delegated the responsibility for collecting mails and leaving them in a convenient area for the tenants to pick up.  With the number of tenants in the premises, the arrangement of the landlord distributing mails once or twice a month would certainly be unacceptable to the tenants.  The explanation of the applicant that the landlord distributes mails once or twice a month is inherently incredible. The delay is not insubstantial but there is no valid explanation.

Grounds and prospect of success of the intended appeal

7.  The applicant’s proposed grounds of appeal are set out in paragraphs 7 to 9 of his affirmation.  She said:

“7. However, I have since taken legal advice and, I understand that there is a good grounds of appeal that was not necessarily considered at the stage of applying for the leave for Judicial Review. … Additionally, I was informed that the Director and the Adjudicator did not saw the grounds to reverse their decision. …

8. I believe that the merits of this ground of appeal constitute sufficient reason justification for the Court to exercise its discretion in allowing this appeal out of time.

9 Similar to this there is many more unacceptable and unexplainable grounds, which are shown to refuse our Appeal/petition.”

8.  In paragraph 7, the applicant asserted that she had taken legal advice and understood that there is a good ground of appeal which had not been considered when applying for leave to apply for judicial review.  But she did not state what that ground is. In paragraph 8, she said she believed there are merits in that ground of appeal but did not set out what the merits are.  In paragraph 9, she claimed there are many more unacceptable and unexplainable grounds.  Again he did not set them out.  In effect, the applicant has failed to put forward any grounds of appeal, let alone one that is arguable. 

9.  In paragraphs 10 to 13, the applicant repeated her fears and reasons for staying in Hong Kong.  She argued that the Director and Board were wrong in refusing her application for non-refoulement protection.  Insofar as these arguments are treated as grounds of appeal, they are just attacks on the finding of fact of the Board.  The reasons for the Board’s finding are summarised in paragraph 16 to 17 of the Form Call- 1.  All her grounds for applying for judicial review had been considered in paragraphs 19 to 27 of the Form Call-1.  I repeat the reasons stated therein in refusing her application for leave to apply for judicial review.  The applicant has not advanced any arguable grounds for challenging this Court’s decision in refusing her leave.  In the absence of proper grounds of appeal, I can only infer there are no merits in her intended appeal.  Her appeal is just to stall for time and is not bona fide.  The intended appeal has no prospect of success.

Prejudice to the respondent

10.  As for prejudice to the proposed respondent, usually this issue would not be explored in an ex parte application for extension of time.  But the prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed in the absence of a properly formulated ground of appeal with some prospect of success is obvious. It is an abuse of legal process and would encourage other claimants to indulge in such abuse.  It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court.  It would render it difficult for the Director to perform his duty of maintaining immigration control.  Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment.  This application does not raise any questions of general public importance.  It may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

11.  In summary, there is no valid explanation for a short delay of albeit two days.  That is not fatal to an application for extension of time.  But the absence of an arguable ground of appeal with prospect of success is.  It is an abuse of process to challenge a decision without proper and good ground of appeal and which is bound to fail.  To allow such a challenge to proceed when it is already out of time would encourage other claimants to indulge in such abuse and create prejudice to the intended respondent and to the administration.  For all these reasons, the application for extension of time to appeal is refused.