RE KHAN MUHAMMAD SUFIAN

HCAL 450/2019

[2022] HKCFI 2817

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 450 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 15 July 2022 (the “Summons”) for extension of time to appeal the order of this Court dated 27 April 2022 (the “Order”) refusing him leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / non-Refoulement Claims Petition Office (the “Board”) dated 11 February 2019 (the “Decision”).

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. 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 delay and reasons for the delay

3.  By 15 July 2022 when the Summons was filed, two months and eighteen days had lapsed since the date of the Order. The application was made more than two months out of time. The delay is substantial in the context of a fourteen-day period of appeal. In his Summons and supporting affirmation, the Applicant gave an address in Yu Chau Street which is different from that given by him in his Form 86, namely an address in Cross Street and to which address the Order was sent. He said he had not received the Order until 15 July 2022, by then time to appeal has lapsed. He asserted that he did not want to return to his home country because his life is still in danger there. Possibly, he did not receive the Order because he had moved without updating his new address with the Court. To assist him in presenting a proper case for extension of time, this Court gave him directions by letter dated 9 August 2022 to file a statement within 14 days of the letter setting out, inter alia, the date and circumstances when the Order was brought to his attention, the particulars of his changes in residential address since 18 February 2019, which was the date when he filed his Form 86, and the grounds of his intended appeal. The letter was sent to his address as stated in his Summons. As at the date of this decision, he has not responded.

4.  In the absence of any response from him, the only irresistible inference from the circumstances is that the Applicant did not receive the Order because he had moved without updating his new address with the Court. In Re Karamjit Singh[2] and Re Hasmi Rizwan Imran[3], the Court of Appeal held that 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. Hence, there is no valid explanation for the substantial delay.

Prospect of success of the intended appeal

5.  Despite the Court’s specific request for the grounds of his intended appeal, the Applicant did not respond. The inference is that he has no arguable grounds of appeal. Without even knowing what his grounds of appeal are, it is very difficult to assess the prospect of success of the intended appeal.

6.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a non-refoulement claim 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. In a judicial review of that decision, the court will 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[4]. Thus, in the absence of any specific grounds challenging the Court’s decision in refusing leave to apply for judicial review and in an application to appeal that decision out of time, the best the court can do is to re-assess the decision focusing on the above vitiating elements.

7.  I have rigorously re-examined the Form Call-1, the Decision, the papers and the evidence with anxious scrutiny. I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the issues; the burden of proof and standard of proof; and observed a very high standard of fairness. I am satisfied that the Board’s Decision has not been so vitiated. On the material now available, the Applicant’s intended appeal has no prospect of success at all.

Prejudice to the respondent

8.  The prejudice to the proposed respondent and to public administration, if his application is allowed, is obvious. It is a clear abuse of legal process to challenge the court’s decision without proper and good grounds of appeal and which is bound to fail. Despite having been given a last opportunity to furnish his grounds of appeal, the Applicant failed to do so. 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. 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 his application may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

9.  For the above reasons, the application for extension of time to appeal is refused.