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

HCAL 457/2022

[2023] HKCFI 3134

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 457 OF 2022

_______________________________

_______________________________

________________________

D E C I S I O N

________________________

Introduction

1.  This is the Applicant’s application by summons filed on 15 November 2023 (the “Summons”) seeking extension of time to appeal the order of this Court dated 23 May 2023 (the “Order”) refusing his application for leave to apply for judicial review (the “leave application”).

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 15 November 2023 when the Summons was filed, the application was five months and nine days 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. Usually, prospect of success of the intended appeal is the single factor which carries most weight in deciding whether to grant extension of time. The fourth factor needs to be considered only if the sum total of the first three are in favour of granting extension of time.

Length of delay and reasons for the delay

4.  The application is five months and nine days late. The delay is inordinate in the context of a 14-day period of appeal. In his statement attached to his supporting affirmations, the Applicant gave the following explanation for the delay:

“ I had time of 14 days for my notice of APPEAL. I filled the NOTICE OF APPEAL form and submitted to the welfare officer of Castle Peak Bay Immigration Centre to lodge it on 20th April 2023. The cost for my APPEAL was already HANDED IN before my deadline date from my visitor during my visit. As you already know that I am still being detained, they just came on 21st June 2023 to escort me to the court which was already too late. And now I am being detained at TAI TAM GAP Correctional Institution. So, I request you to please give me some more time to lodge my NOTICE OF APPEAL.”

5.  The hearing of his leave application was held on 20 April 2023. The Form CALL-1 and Order sought to be appealed against were issued on 23 May 2023. His Summons was filed on 15 November 2023. Against the above chronology, it is immediately apparent there is not a scintilla of seriousness or sincerity in this application.

6.  He actually appeared before this Court in the hearing of his leave application on 20 April 2023. The decision was reserved. How and why would he have lodged his Notice of Appeal to the welfare officer on that same date when the Order had not yet been made. The Order was made on 23 May 2023. He mentioned about the Correctional Services officers escorting him to court on 21 June 2023. There were no proceedings in relation to which he had to before this Court on that day. Nor did he file his Notice of Appeal on that day. His Notice of Appeal was filed half a year later on 15 November 2023. Given the above context, there is no room for any honest or inadvertent mistake. He was giving a whole load of non-sense to this Court in his purported explanation which indicates he has absolutely no sincerity or seriousness in this application which is just another of his abuse of the legal process.

7.  When his application is viewed against the history of his delay, this lack of seriousness and his abuse of the legal process becomes manifestly clear. He had been in Hong Kong for about 23 years. He first arrived Hong Kong under the identity of “Imran Ali Mushtag” in May 2001 and was repatriated on 14 September 2001. He entered Hong Kong again on 13 November 2002 under another identity, “Ali Imran” and was repatriated on 22 January 2003. He was found and arrested in Hong Kong again on 4 October 2009. It was then that he made a non-refoulement claim. That was four years after his alleged risk of harm and death first arose. As of this year, the proceedings have dragged on for 14 years! He is still seeking leave to appeal out of time. See Paragraphs 2 to 6 of the Form CALL-1.

8.  This Court had fixed an oral hearing on 3 April 2023 for the hearing of his leave application. Before the hearing, the Applicant sought an adjournment by letter dated 19 February 2023 to enable him to wait for the outcome of his legal aid application and to obtain further documents from Pakistan. To partially accommodate his request, this Court re-fixed the hearing to 20 April 2023 effectively allowing him a stay of 61 days. However, at the hearing, he repeated his request for adjournment because he had not applied for legal aid until 21 March 2023. This Court refused his application and proceeded with the hearing of the leave application. See Paragraphs 7 and 8 of the Form CALL-1.

9.  The leave application was made 4 years and 9 months after the date of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Decision”) sought to be reviewed. It may be refused on the ground of inordinate delay alone, pursuant to the decision of the Court of Final Appeal in Po Fun Chan v Winnie Cheung[2]. Nevertheless, this Court also considered merits in the proposed judicial review but found there were none. Hence, this Court refused granting him extension of time to apply and refused his leave application.

10.  The delay is inordinate and for which the Applicant could give no reasonable explanation. The delay carries the hallmark of an abuse of proceedings for the purpose of delaying his refoulement proceedings.

Prospect of success of the intended appeal

11.  The Applicant’s only ground of intended appeal as disclosed by his Summons is that he is not satisfied with the Decision of the Director of Immigration and the Board and that the decisions are unfair. At the hearing before this Court, the legal principles applicable to judicial review had been explained to him. This Court engaged in a pro-active dialogue with him about the basis on which he may apply for judicial review, ie error of law, procedural unfairness and irrationality in the Decision. All the grounds of unfairness he had in mind had been considered in the Form CALL-1. See Paragraphs 23 to 25 of the Form CALL-1. The Applicant gave no particulars of the unfairness now alleged. He gave no particulars where this Court went wrong in its decision in the Form CALL-1. He just appealed for the purpose of appeal and to delay his non-refoulement proceedings. His intended judicial review is an abuse of proceedings and has no prospect of success.

Conclusion

12.  In view of the conclusions reached above, there is no need to consider the issue of prejudice to the respondent if extension of time is granted. For the above reasons, the application for extension of time to appeal is refused.