FARAKH ALI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2196/2019

[2023] HKCFI 2390

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2196 OF 2019

________________________

________________________

________________________

D E C I S I O N

________________________

Introduction

1.  This is the Applicant’s application by summons filed on 24 August 2023 (the “Summons”)  seeking leave to appeal the order of this Court dated 29 March 2023 (the “Order”)  refusing his application for 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”).

Legal principles applicable to application for extension of time to appeal

2.  Under Order 53, rule 3(4)  of the Rules of the High Court, an appeal against any decision of the court refusing an application for leave to apply for judicial review shall be made within fourteen days after the date of the decision.  Thus, by 24 August 2023 when the Summons was filed, this application was almost four and half months out of time.   Leave to appeal out of time is required. 

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 the delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the respondent if extension of time was granted.

Length of delay and reasons for the delay

4.  The application is almost four and half months late which is very substantial in the context of a 14-day period of appeal.  In his three-page statement of grounds of intended appeal attached to his supporting affirmation, the Applicant mainly reiterated his disagreement with the Decision of the Board which he believes is unreasonable and unfair, that his life will be in danger if returned to Pakistan, that he has been held in detention and was not legally represented.  He asks for an oral hearing for him to advance a new sole ground of appeal.  He has no explanation for the almost two months’ inordinate delay in appealing.

Prospect of success of the intended appeal

5.  Despite his allegation of unreasonableness and unfairness in the Decision and his request for leave to advance a new sole ground of appeal, he never informed the Court what that ground is.  His inordinate delay and absence of a statement of the grounds of the intended appeal speak volume of the lack of merits in his intended appeal.  His conduct also suggests he has no genuine intention to prosecute his appeal.  He has failed to show there is good prospect of success in his intended appeal.

6.  As at today, his non-refoulement proceedings have taken a course of 16 years.  During the first 11 years, he never seriously prosecuted his claim which was repeatedly refused due to his own default.  Even at the last hearing of his application for leave to apply for judicial review, he was still seeking to ask for time to enable him to collect evidence, but he could not give particulars of the evidence he had in mind to collect.  The procedural history of this case and the present unexplained delay carry the hallmark of a deliberate abuse of legal proceedings.

Prejudice to the respondent

7.  If this application is allowed, the prejudice to the proposed respondent and to public administration is obvious.  It is a clear abuse of legal process to challenge a decision without proper and good grounds 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.  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 genuine victims of 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

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