RE ALI YASIR

HCAL 165/2022

[2022] HKCFI 2231

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 165 OF 2022

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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 22 June 2022 (the “Summons”) for extension of time to appeal my order dated 6 May 2022 (the “Order”) refusing his application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office dated 12 March 2020 (the “leave application”). 

The Law

2.  In Jagg Singh v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office[1], 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 of the intended appeal; and

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

Length of delay and reasons for the delay

3.  By 22 June 2022 when the Summons was filed, 47 days had lapsed since the date of the Order.  The application is 33 days out of time, which is very substantial in the context of a fourteen-day appeal period. 

4.  The explanation for the delay given by the Applicant in his supporting affirmation is that he did not receive the Order and that he was only informed by his immigration officer, presumably when he reported his recognizance, that his leave application had been dismissed.  His address as stated in his affirmation in support of this application is at Shu Kuk Street.  The address he gave in his leave application dated 15 February 2022 was at Castle Peak Bay Immigration Centre.  The Court’s correspondence addressed to him care of Castle Peak Bay Immigration Centre on 25 April 2022 had been returned undelivered. Enquiries with the Immigration Department revealed that he had been discharged and he had reported his new address at Yuen Long.  Accordingly, the Order and Form Call-1 in relation to his leave application were sent to his address at Yuen Long. His move to Shu Kuk Street explains why he did not receive the Order.

5.  In Karamjit Singh[2], the Court of Appeal said:

“As we have said before, it is common sense that if a litigant or a claimant does not notify the authority (be it the Immigration Department, the board, or the court) in his change of address, there would be delay in communication. If he does not do so, he should arrange for timely transmission of mail from his old address to his new address. It is the duty of a litigant/claimant to give the authority an address to which correspondence or notice can come to his attention in timely manner. The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant/claimant, see: Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims Appeal Board [2018] HKCA 82; and Re Saqlain Muhammad [2018] HKCA 346. That said, however, we note that the delay in this case was very short, being only some 6 days. In such situations, the board should generally have regard to the merits of the case as disclosed by the available material, rather than simply dismissing the application for lateness.”

Thus, it is the Applicant’s duty to report his change of address to the Court.  If he did not, he has to bear the consequence of his neglect. 

6.  The Applicant has repeatedly ignored his obligation to inform the Court of his change of address which resulted in his failing to receive the Order within time for him to appeal.  His neglect has wasted the court’s resources in following his whereabouts and caused delays in the non-refoulement process.  Not only that, the Applicant is a repeated defaulter.  As noted in paragraph 6 of the Form Call-1, his application for leave to apply for judicial review was 20 months out of time.  His repeated defaults and repeated neglects in not informing the Court of his change of address suggest he has no real intention to prosecute the proceedings and that he is abusing the legal process and the non-refoulement system.  He has to bear the consequence of his repeated neglects.

Prospect of the intended appeal

7.  His grounds of appeal as stated in his supporting affirmation are that the Order was reached unfairly without allowing him an opportunity to clarify his case and situation in his country and that he was a litigant in person. 

8.  Dealing with his last point first, it is well settled law that the high standard of fairness does not require the host country to provide a claimant with legal assistance at all stages of the non-refoulement process: see Karamjit Singh.  The Applicant had been given legal representation in the proceedings before the immigration officer.  All that legal representation could have assisted was contained in the documents in the hearing bundle before the Board.  His lack of legal representation before this Court cannot be a valid ground of appeal.

9.  As stated in paragraph 20 of the Form Call-1, the role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  This Court will only scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[3].  This Court has no fact finding functions in a judicial review.  Even allowing him to address this Court and to recite his evidence could not assist him, if this Court is unable to find any errors of law, procedural unfairness and irrationality in the Board’s Decision.  Despite full reasons had been given in the Form Call-1, he did not come up with any proper challenge of the Board’s Decision on the above grounds.   

10.  The Applicant has no arguable grounds of appeal.  His intended appeal has no prospect of success.

Prejudice to the respondent

11.  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 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 may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

12.  The Applicant has no arguable grounds of appeal and has no valid explanation for the substantial delay.  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, the application for extension of time to appeal is refused.