RE RAHMAN ZUBAIR

HCAL 2803/2018

[2022] HKCFI 2446

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2803 OF 2018

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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 11 May 2022 (the “Summons”) for extension of time to appeal the order of Deputy High Court Judge Suffiad (“DHCJ Suffiad”) dated 11 November 2021 (the “Order”) refusing to grant him leave to apply for judicial review of the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (the “Board”) dated 12 November 2018 (the “leave application”).

2.  In his Summons and supporting affirmation, the Applicant claimed he “can’t receive any letter from the Court” and he “took the decision from the Court on 11 May 2022”. His explanation for the delay is ambiguous. Presumably, he meant he never received the Order and he obtained a copy of the Order from Court on 11 May 2022 by searching the Court file. To assist him in presenting a proper case, this Court gave him directions by letter dated 10 June 2022 to file a statement within 14 days of the letter stating:

(a)  the date when he received the Order; and

(b)  the grounds of his intended appeal.

He was also informed that his application for extension of time will be determined on paper without a hearing whether he has complied with the above directions or not.

3.  As at the date of this decision, the Applicant has not responded. The letter was posted to him at his address given by him a month ago in his Summons. It has not been returned through the post. The delivery service of Hong Kong Post is usually very reliable. There was nothing to suggest the Applicant had moved within that one month or has not received the letter. He is deemed to have declined providing his explanation for the alleged late receipt of the Order and the grounds of his intended appeal.

The Law

4.  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;

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

Length of delay and reasons for the delay

5.  Any person aggrieved by an order of the court may appeal within 14 days after the date of the order. By 11 May 2022 when the Summons was filed, six months had lapsed since the date of the Order. The application is five and a half months out of time, which is very substantial in the context of a fourteen-day appeal period. The Applicant’s explanation for the delay is just a bare assertion of non-receipt without particulars as to why he did not receive the Order and yet came to know that the Order had been made. The delivery service of Hong Kong Post is usually very reliable. It is very difficult to accept that the Applicant’s assertion is credible or that he was not to blame merely on the basis of his bare assertion. I do not accept he has a reasonable explanation for the very substantial delay.

Prospect of the intended appeal

6.  The ultimate subject matter which the Applicant sought to challenge in the intended judicial review is the finding of the Board in its Decision. The Applicant declined providing his grounds of intended appeal. The only way the Court could assess the prospect of success of his intended appeal is to re-examine the Decision afresh. In an application for leave to apply for judicial review, an applicant may only challenge the Board’s finding on the grounds that it was made as result of errors of law, procedural unfairness and that the Decision was irrational. All these considerations have been set out in the Form Call-1. The decision to refuse his application for leave to apply for judicial review was made after rigorous examination of the Decision with anxious scrutiny. Given the limited scope in which an applicant may challenge the finding of the Board in a judicial review and having rigorously re-examined the Form Call-1 and the Decision with anxious scrutiny, I am not satisfied that there is any prospect of success in the Applicant’s intended appeal.

Prejudice to the respondent

7.  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. Granting him leave under the circumstances may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

8.  The Applicant has no arguable grounds of appeal and has no valid explanation for the very 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.