RE SINGH SATVEER

HCAL 815/2018

[2021] HKCFI 2206

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 815 OF 2018

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DECISION

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Introduction

1.  This is the applicant’s application by summons dated 18 August 2020 for extension of time to appeal the order of Deputy High Court Judge C P Pang dated 15 July 2020 (the “Order”) refusing his application for leave to apply for judicial review.   

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.  By 18 June 2021, the time to appeal has expired.  The application for leave to appeal is 20 days out of time. 

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 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 the delay and reasons for delay

4.  In his affirmation filed on 18 August 2020 in support of his application for extension of time, the applicant said that after receiving the Order, he asked around if there was a deadline for appeal, but was misled by a friend who told him that his case could not go forward.  It was only until he kept asking around that he came to know he could appeal against the Order.  But by then, the 14-day period lapsed.

5.  On 16 June 2021, directions were given to the applicant to file an affirmation setting out his proposed grounds of appeal within 14 days.  The applicant did not file any affirmation.  Instead, he sent a letter dated 23 June 2021.  In the letter, he repeated his fear.  He said he did not receive the letter (ie the Order and Form Call-1) from the High Court. He said he had no reason to “lose” the letter and believed the High Court had sent the letter.  He suggested that there might be too much mails in the letter box and someone might have removed the mails to clean the box.  Obviously, he has forgotten about his affirmation.  This new explanation is so inconsistent with his affirmation that it can only be rejected.  Thus, put at the highest, his reason for the delay remains that he was ignorant about the deadline and he allowed time to lapse by making enquiries with people who were not qualified to advise him. He could have simply approached the High Court to make enquiries.  The delay was not serious but the explanation is invalid.

Grounds of appeal and prospect of success of the intended appeal

6.  The applicant was given clear directions to file his grounds of appeal.  Not only did he not file an affirmation setting out his grounds, his letter which was apparently lodged for the purpose of compliance with the directions did not contain any arguable grounds of appeal.  He only repeated that he could not return to his home country because of his fear; that he had told the Director and the Board the truth; and that the Director and the Board was wrong in not believing his story.  He said that these are the main reasons for his leave application.

7.  In effect, the applicant seeks to challenge the finding of fact by the Board.  Those arguments had been presented before the Director and the Board and were rejected at both levels.  Those arguments were then repeated before Deputy High Court Judge Pang when considering his application for leave to apply for judicial review and were, in my view, rightly rejected by the learned judge in paragraphs 11 to 17 of the Form Call-1.

8.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement 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.  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].  The grounds now advanced by the applicant are challenges to the finding of fact by the Board.  I adopt the reasons stated by Deputy High Court Judge Pang in refusing his application for leave.  These grounds do not constitute any valid ground for applying for judicial review, still less a ground to challenge a decision refusing such leave.  

9.  For the reasons as stated in the above paragraph, I can only come to the conclusion that there is no arguable ground of appeal. The intended appeal has no prospect of success.

Prejudice to the respondent

10.  As for prejudice to the proposed respondent, usually this issue would not be explored in an ex parte application for extension of time.  But 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. It 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.  This application does not raise any questions of general public importance.  It may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

11.  In summary, there is no valid explanation for a not insubstantial delay of twenty days.  That is not fatal to an application for extension of time.  But the absence of an arguable ground of appeal with prospect of success is.  It is an abuse of process to challenge a decision without proper and good ground 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.  For all these reasons, the application for extension of time to appeal is refused.