RE AJAYPAL SINGH

HCAL 22/2022

[2022] HKCFI 2808

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 22 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 4 July 2022 (the “Summons”) for extension of time to appeal the order of this Court dated 1 June 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 15 December 2021 (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 4 July 2022 when the Summons was filed, 33 days had lapsed since the date of the Order. The application is 19 days out of time. In his supporting affirmation, the Applicant admitted receiving the Court’s Order but misplaced it. He claimed that he was not able to appeal without the Court’s decision and Order. To assist him in presenting a proper case for extension of time, this Court gave them directions by letter dated 27 July 2022 to file a statement within 14 days of the letter stating the date and circumstances when the Order was received or brought to his attention 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.  The delay is not very substantial, but without knowing when the Applicant actually received the Order, it is difficult to assess the extent of his neglect in filing his appeal. The Court has to assume he received the Order in the ordinary course of mail and is therefore wholly responsible for his neglect because he admitted misplacing the Order. He could have, nevertheless, come to the Registry and sought assistance in filing the appeal within the fourteen-day period. There is no valid explanation for the very 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[2]. 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 a challenge is allowed to proceed in the absence of a properly formulated ground of appeal with some prospect of success is obvious. His application is an abuse of legal process and 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. To allow his application may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

9.  The is no valid explanation for the delay and no arguable ground of appeal. 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. Despite having been given a last opportunity to furnish his grounds of appeal, the Applicant has failed to do so. The only reasonable inference is that he has no explanation for the delay and no arguable ground of appeal. His application is an abuse of legal process. 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. For all these reasons, the application for extension of time to appeal is refused.