ZAHEER HAIDAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1031/2019

[2023] HKCFI 395

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1031 OF 2019

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D E C I S I O N

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INTRODUCTION

1.  This is the Applicant’s application by summons filed on 26 September 2022 (the “Summons”) for extension of time to appeal the order of this Court dated 26 July 2022 (the “Order”) refusing his application for leave to apply for judicial review (the “Leave Application”) of the decision (the “Decision”) of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 8 April 2019.

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 the judge’s order to the Court of Appeal within 14 days after such order was made. By the time when the Summons was filed, the application is one month and seventeen days out of time.

THE LAW

3.  In Jagg Singh v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office [1]and Director of Immigration and William Lam[2], the Court of Appeal held that what may constitute a good reason for extending time cannot be defined. In most cases, this would be a “multi-faceted question” the answer to which would depend on the circumstances of each case. The following factors, which are not exhaustive, are likely to be of significance in determining whether to grant extension of time:

(1)  length of delay;

(2)  reasons for the delay;

(3)  prospect of success in the intended appeal; and

(4)  prejudice to the respondent if extension was granted.

LENGTH OF DELAY AND REASONS FOR THE DELAY

4.  The Applicant’s explanation for the late appeal as set out in his supporting affirmation is that he was unrepresented and have no means to instruct a private lawyer. Presumably, he meant to argue that he was unrepresented, has no knowledge of the law and the time limit to raise an appeal and needed additional time to make out his appeal. These are not valid explanations for the delay.

PROSPECT OF SUCCESS OF THE INTENDED APPEAL

5.  The delay, though not insubstantial, is not such that this Court will refuse his application for extension of time without considering the prospect of success of his intended appeal. This Court was prepared to condone his delay, if he can show a good prospect of success in his intended appeal. Hence, the prospect of his intended appeal becomes the determinant factor for his application for extension of time. In both his Summons and supporting affirmation, he did not advance any grounds of his intended appeal. Thus, this Court gave him direction on 4 January 2023 to file a statement setting out his grounds of the intended appeal on or before 12 January 2023. As at the date of this decision, fifty-seven days have lapsed since the date of the directions, this Court has not received the grounds of his intended appeal. In the circumstances, he has no reasonable explanation for the delay and no grounds of intended appeal which show a good prospect of success. As such no extension of time to appeal will be allowed.

PREJUDICE TO THE RESPONDENT

6.  The prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed is obvious. The delay is by itself an abuse of the process of the court and the non-refoulement protection arrangement. To allow the challenge which has no prospect of success to proceed 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. Allowing the application to proceed may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

CONCLUSION

7.  The Applicant has no valid explanation for a not insubstantial delay. Despite directions having been given to him to file the grounds of his intended appeal, he did not respond. His intended appeal has no prospect of success. To allow such an un-meritorious challenge to proceed would be prejudicial to the intended respondent and the administration. Accordingly, his application for extension of time to appeal is refused.