MAHMOOD ADNAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2618/2018

[2023] HKCFI 705

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2618 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 1 September 2022 (the “Summons”) for extension of time to appeal the order of this Court dated 20 July 2022 (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”) dated 28 September 2018.

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 twenty-eight days out of time, which is not insubstantial in the context of a fourteen-day appeal period.

THE LAW

3.  In Jagg Singh v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office[1] and AW v 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 EXPLANATION FOR THE DELAY AND PROSPECT OF SUCCESS

4.  The Applicant gave no explanation for the delay in appealing other than asserting in his supporting affirmation that he is unrepresented and has no means to instruct a lawyer. In his Summons, he asserted that he had annexed a draft notice of appeal setting out the grounds of his intended appeal, but no such document was annexed thereto.

5.  The Court noted that the Order and Form CALL-1 were sent to the Applicant’s last known address in Yee Kuk Street, whereas his address as stated in his Summons and supporting affirmation is at Nam Cheong Street. The Court has never been informed of his change of address. If in fact he had not received the Order, it was most likely because he had not informed the Court of his change of address. In Karamjit Singh[3], 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.”

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.  Instead of rejecting his explanation forthwith, to assist him to make a proper application for extension of time, this Court gave him specific directions by letter dated 4 January 2023 to file a statement by 11 January 2023 stating, inter alia, the date and circumstances when the Order was received by him or brought to his attention, his correspondence addresses since 20 November 2018 when he last used the Yee Kuk Street address, the dates of his subsequent changes of address, the dates of his informing the Court of the change and the grounds of his intended appeal. As at the date of this decision, sixty-one days have lapsed since the date of the directions, this Court has not received any response from him. He has been given enough indulgence from this Court. In the circumstances, this Court could only come to the conclusion that he did not receive the Order and Form CALL-1 because he neglected to update the Court of his change of address and he has failed to demonstrate there is good prospect of success in his 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 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

8.  The Applicant has no valid explanation for the delay. Despite directions having been given to him to file proper explanation for the delay and 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.