MONDAL RIPON v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2815/2018

[2023] HKCFI 1174

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2815 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 15 March 2023 (the “Summons”) for extension of time to appeal the order of this Court dated 10 February 2023 (the “Order”) refusing his application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office dated 19 November 2018 (the “leave application”).  

The Law

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 nineteen days out of time, which is substantial in the context of a fourteen-day appeal period. 

3.  In Jagg Singh v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office[1] and 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.

Usually, prospect of success in the intended appeal is the determinant factor.  If the delay is short and there are reasonable explanations for the delay, the Court would be more relaxed in respect of the other factors.  If the delay is substantial and unexplained, usually extension of time will be refused because the statutory time limits are meant to be observed.  In addition, an unexplained and substantial delay also reflects an absence of genuine intention to persecute the appeal.

Discussion

4.  The application is nineteen days out of time, which is substantial having regard to the fourteen days’ period of appeal.  In his supporting affirmation, the Applicant said he did not receive the Order within reasonable time but gave no details and did not give any explanation for the delay.  Hence, the Court gave him directions by letter dated 24 March 2023 to file a statement stating: (i) the date when and the circumstances under which the Order was received or brought to his attention and (ii) the grounds of his intended appeal.

5.  In response, the Applicant lodge a statement alleging that he lived in a flat with many sub-divided units and the landlord collected all the mails to distribute to the tenants.  He said that by the time the landlord gave him the Order, the time to appeal had lapsed.  This is a bare assertion without supporting evidence from the landlord which the Court will not readily accept.  However, this Court considered the prospect of success of the intended appeal is the determinant factor in this application.  Hence, this Court was prepared to accept his explanation without verifying the supporting evidence, if he could demonstrate good prospect of success in the intended appeal.  His ground of the intended appeal as stated in his statement is procedural unfairness, but he gave no particulars.  Thus, to assist him to perfect his application, the Court gave him further directions to file an affirmation or a statement giving further and better particulars of the procedural unfairness alleged.

6.  In response, he filed a four-page affirmation stating that he had taken legal advice and understands that there is a good ground of appeal that was not necessarily considered at the stage of applying for leave to apply for judicial review.  He believes there are merits in this ground.  He also asserted that there are many more unacceptable and unexplainable grounds which are shown to refuse his appeal/petition.  He alleged that the Director and the Board reached the wrong decision.  He had been specifically directed to give further and better particulars of the alleged procedural unfairness.  Yet, he said no more than that he understands that there is a good ground of appeal and that there are many more unacceptable and unexplainable grounds.  He had been asked to state his grounds of the proposed appeal once and then again in more explicit terms to give further and betters of his grounds.  He declined giving particulars of the grounds of the proposed appeal as twice required by the directions.  The failure is deliberate. 

7.  It is well settled law that the role of the courts in judicial review, including the Court of Appeal, 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.  In a judicial review, the court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[3].   The Board’s Decision is basically a finding of fact which the Court in a judicial review will not interfere save for errors of law, procedural unfairness and irrationality in its Decision. 

8.  The Applicant has deliberately refused to put forward any particulars of the grounds of the intended appeal.  This is an aimless appeal without any ground and for no purpose other than to seek a re-determination by a higher tribunal.  Thus, by his intended appeal, he is seeking to challenge this Court’s finding that the Board’s Decision had not been tainted by any of the above vitiating elements, which is the sole ground for which the Court may review the Decision of the Board; but he has not provided any arguable basis for challenging this Court’s decision.  He has not identified the errors of this Court in refusing his leave application.  He has not identified what was wrong with this Court’s finding that the Board’s decision had not been tainted by errors of law, procedural unfairness or irrationality.  Having rigorously re-examined the Decision, the Form CALL-1 and all the papers with anxious scrutiny and for reasons as explained in Paragraphs 16 to 27 of the Form CALL-1, this Court is unable to detect any such vitiating elements.  The Applicant’s intended appeal has no prospect of success. 

9.  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

10.  Even assuming that the Applicant has a reasonable explanation for the substantial delay, he has repeatedly and deliberately failed to properly state the grounds of his intended appeal to enable the Court to assess the prospect of its success.  The Court could only come to the conclusion that 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.