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

HCAL 2214/2019

[2023] HKCFI 235

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2214 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 7 September 2022 (the “Summons”) for extension of time to appeal the order of this Court dated 8 June 2022 (the “Order”) dismissing his application to re-open (the “re-opening application”) his application for leave to apply for judicial review (the “leave application”) of the decision of the Director of Immigration (the “Director”).

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 was made. By 7 September 2022 when the Summons was filed, the time to appeal has lapsed. 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 extension of time was granted. Though this is an application to re-open an application to apply for leave to apply for judicial review and not an application to appeal a decision refusing leave, as the context is about leave to apply for judicial review, I accept the same principles are applicable.

THE BACKGROUND

3.  The factual background leading to his present application has been fully set out in paragraphs 1 to 9 of this Court’s decision dated 8 June 2022 (the “Court’s Decision”) sent to him together with the Order against which he now seeks to appeal. Very briefly, the Applicant had lodged a torture claim in 2007 which was dismissed by the Director by his Notice of Decision dated 15 March 2017 and Notice of Further Decision dated 15 March 2019, against which he never appealed. Those decisions became final. In May 2019, he made a subsequent claim pursuant to section 37ZO of the Immigration Ordinance which was also dismissed by the Director’s Notice of Decision dated 3 July 2019 (the “3^rd Notice”).

4.  On 2 August 2019, the Applicant applied to the Court of First Instance for leave to apply for judicial review of the 3^rd Notice, ie the leave application. Before his leave application came to be determined, he applied by affirmation dated 17 June 2021 to withdraw his leave application asserting that his problem in his home country was solved (the “withdrawal application”). On 24 June 2021, this Court approved his withdrawal application. About ten months later, on 26 April 2022, he made the re-opening application on the ground that his problem is not solved.

5.  This Court took the view that his re-opening application failed to provide any basis for impugning an apparently valid withdrawal. To assist him to properly present his application, the Court gave him directions to file an affirmation or a statement explaining:

(a)  why he applied to withdraw his Leave Application on 17 June 2021;

(b)  why he did not return to his home country after his Withdrawal Application was granted on 24 June 2021;

(c)  when did he realize his problem in his home country was not solved; and

(d)  the reason for his delay in filing this Summons.

6.  In his statement dated 10 May 2022 (the “Statement”), the Applicant replied as follows:

“My family told me my problem has solved. By this time Immigration tring (sic) to send me. But they failed because sending process is very critical. On the other hand my family asked me to not return as the enemy are waiting to kill me. So I changed my mind.”

The Applicant’s ground for re-opening the leave application is that at the time he made the withdrawal application, ie June 2021, his family had told him that his problem had been solved. He would be safe to return to Bangladesh. However, the repatriation process took a long time. By April 2022, ten months had lapsed when the Immigration Department was able to arrange his repatriation. But then, his family told him not to return as his enemies were waiting to kill him. Hence, he wished to restore his leave application. On 8 June 2022, this Court refused his re-opening application.

GROUNDS OF THE INTENDED APPEAL

7.  In his Summons, the Applicant sought leave to advance a new sole ground of appeal. This new sole ground as spelt out in his supporting affirmation filed on the same day is as follows:

(a)  the Court’s Decision was reached unfairly without allowing the Applicant an opportunity to clarify his case and situation in his country;

(b)  the Applicant had no knowledge about the time limit for lodging appeal because he is illiterate and unrepresented; and

(c)  he never received the decision of this Court refusing his application for leave to apply for judicial review which this Court understands him to refer to the Order and the Court’s Decision.

Sub-ground (a) is the substance of his appeal. Sub-grounds (b) and (c) are explanations for the delay.

LENGTH OF DELAY AND REASONS FOR THE DELAY

8.  The Summons was about two and half months out of time. It is very substantial in the context of a fourteen-day appeal period. His explanation for the delay is that he had no knowledge about the time limit for lodging appeal because he is illiterate and unrepresented: see sub-ground (b). Usually, ignorance of the law and time limits is no excuse. He also made an additional allegation that he had never received the Court’s Decision: see sub-ground (c). But he did not explain how in the circumstances he could have known about the Order and Court’s Decision which he now seeks to appeal against. The usual explanation which this Court heard from other applicants is that they were informed of the court’s decision from their case officers when they reported their recognizance. The allegation is easy to make but difficult to disprove. On the other hand, the delivery service of Hong Kong Post is usually very reliable. However, for reasons as explained below there are no merits in his re-opening application. Hence, this Court does not find it necessary to explore the veracity of his explanation for the delay.

PROSPECT OF SUCCESS OF THE INTENDED APPEAL

9.  The thrust of the Applicant’s ground of appeal is that this Court acted unfairly in not allowing him the opportunity to clarify his case and situation in his country. This is both factually incorrect and wrong as a matter of law.

10.  Firstly, on the fact, this Court realized the inadequacies in his application and gave directions inviting him to provide the factual basis for impugning the Court’s Decision. He had all the opportunity to clarify his case and situation in his country: see paragraphs 5 and 6 above. Yet, he only chose to give the short reply in his letter dated 10 May 2022 that his problem had been solved and then became not solved. That was all that he sought to inform the Court. This Court never prevented him from clarifying his case and situation in his home country. There is no factual basis in this ground of intended appeal. In any event, for reasons as explained below, his case and situation in his home country are irrelevant insofar as his re-opening application is concerned.

11.  Secondly, it must be borne in mind that this is not the usual run of the mill type of application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dismissing an applicant’s appeal against the decision of the Director refusing his application for non-refoulement protection. The decision in respect of which leave to apply for judicial review is sought is the decision of the Director refusing the Applicant’s subsequent application for protection. Most importantly, the decision which the Applicant sought to appeal against is not this Court’s decision dismissing his application for leave to apply for judicial review of the Director’s decision, but this Court’s Decision refusing to re-open his leave application which he has withdrawn. The issues raised in the two applications are wholly different.

12.  In Ali Usman[2], the Court of Appeal held that the legal principle applicable to an application to re-open a leave application, as distinct from determining that application, is whether the withdrawal was valid ie, whether it was the result of a deliberate and informed decision. If it was not, the withdrawal would be a nullity and the leave application would remain extant and may be re-opened. But if it was, the leave application has been validly withdrawn and hence is dismissed and no longer extant. The court which previously had jurisdiction over the application becomes functus officio and has no jurisdiction over the application. Although that decision was related to re-opening an appeal before the Board, this Court considered it equally applicable to re-opening a leave application before the court: see paragraphs 10 to 12 of the Court’s Decision. This Court cannot see how it could have erred in law in applying that principle to this case.

13.  While the Applicant’s case and situation in his home country in a non-refoulement context may be relevant in a leave application, the issue raised in the re-opening application is whether the withdrawal application was made as a result of a deliberate and informed decision. It is only when the Court is satisfied that the withdrawal was not the result of a deliberate and informed decision would the issues of his case and situation in his home country in a non-refoulement context may become relevant in deciding his leave application. Thus, there is no legal basis to support this ground of intended appeal.

14.  On the basis of the facts as asserted by the Applicant, the only irresistible inference which this Court could draw was that his decision to withdraw the leave application was an informed decision made voluntarily. The withdrawal is valid and this Court has no jurisdiction to re-open the leave application: see paragraphs 13 to 18 of this Court’s Decision. The facts were based on the Applicant’s own evidence which he could not dispute. The inference is compelling and overwhelming. This Court cannot see how it could have erred or be criticized in drawing that inference.

15.  Having now rigorously re-examined the Director’s decision and the decision of this Court dated 8 June 2022 with anxious scrutiny, this Court is satisfied that there are no errors of law, procedural unfairness or irrationality in these decisions. This Court is satisfied that the Applicant’s grounds of intended appeal are wholly unarguable. His intended appeal has no prospect of success.

PREJUDICE TO THE RESPONDENT

16.  The prejudice to the proposed respondent and to public administration is obvious, if his application is allowed. 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 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

17.  The Applicant’s intended appeal has no prospect of success. To allow him leave to challenge a decision which is out of time and has no prospect of success is likely to cause serious prejudice to the intended respondent. The length of delay is substantial and unexplained. Even giving him the benefit of a doubtful explanation, it has little bearing in this application. Accordingly, his application for extension of time to appeal is refused.