RE BEPARY MOHAMMAD JAHIRUL

HCAL 235/2017

[2022] HKCFI 321

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 235 OF 2017

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D E C I S I O N

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Introduction

1.  This is the Applicant’s application for extension of time to appeal the order of Deputy High Court Judge Woodcock (“DHCJ Woodcock”) dated 4 August 2017 refusing to grant him leave to apply for judicial review (the “Order”).

2.  On 25 May 2017, the Applicant applied for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) dated 18 May 2017 (the “Decision”).  By that Decision, the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 6 April 2016 refusing his application for non-refoulement protection.

3.  On 5 October 2021, about four years and two months after the Order was made, the Applicant applied by summons for leave to appeal the Order out of time. 

The Law

4.  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. 

5.  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

6.  By 5 October 2021, the time to appeal has expired.  The application for leave to appeal is more than four years out of time.  The breach is very serious.

7.  In his summons, the Applicant advanced the following ground for applying for leave to appeal out of time:

“Leave be granted to the Applicant to appeal out of time on the grounds that the Applicant did not receive the order within reasonable period of time allowing the Applicant to appeal within time.”

He alleged that the Order was not received within reasonable time to enable him to appeal within time, but did not say when he received the Order and he advanced no other grounds.

8.  In his supporting affirmation filed on the same date, he said:

“I crave leave to appeal out of time as I did not receive the order and judgment within 14 days. I should be given an reasonable opportunity to present my case.”

Again, he only said he did not receive the Order within 14 days of the Order to support his application in the summons.  He advanced no other grounds of appeal.  The affirmation gives no clue when he actually received the Order and how much out of time is his present application; but confirms that the late receipt of the Order is his only ground of appeal.  Time should not run against him until the Order has been delivered to him.  If indeed for any reason the Order had never been delivered to him or had not been delivered to him within 14 days, he is entitled to leave and such further extension as may be occasioned by the late or non-delivery of the Order.

9.  On 21 December 2021, I gave directions requiring him to file a statement giving particulars as to when he received the Order and explanations for the delay in appealing the Order.  In his statement he said:

“The time for filing an appeal was 14 days only, from the 4th August 2017 to 18th August 2017. But, I applied for the prolonging of the period, after a long time later.”

I take that as his admission that he had received the Order within reasonable time of the date of the Order and that he was late by more than four years.

Reason for the delay

10.  In his rather convoluted statement, he gave the following explanation for the delay in appealing.  He asserted that in 2017, Hong Kong Government started to repatriate refugees back to their country by force.  Refugees were captured when reporting their recognizance, detained and tortured physically and mentally until they consented to be returned.  On hearing about these, he became sick and terrified.  He did not know English and sought help from friends to try to understand the decision of DHCJ Woodcock.  His friends could not help him and he could not afford the expensive fees to instruct a lawyer. So he moved his residence and defaulted reporting his recognizance to the Immigration Department to avoid being repatriated.  He kept moving his residence.  In gist, he admitted he had received the Order within time, but he was terrified by what he heard about torture by the Immigration Department.  He did not want to be repatriated.  Rather than appealing the Order, he kept moving around for four years to escape the consequences of the Order.  I do not consider that a valid explanation for the delay in appealing nor a valid ground for appeal. 

Prospect of success of the intended appeal

11.  The Applicant’s sole ground of appeal is he did not receive the Order within time or at all.  He failed to prove that ground. He has advanced no other grounds.  I have rigorously scrutinised the reasons given DHCJ Woodcock in her decision in the Call-1 Form, the Decision of the Board and the Notice of the Director.  I could detect no error of law, procedural unfairness or irrationality in the Board’s Decision.  I agree with DHCJ Woodcock’s decision.  The Applicant has no valid ground of appeal.

12.  His explanation for the late application is his inaction. He just moved around from place to place to avoid the consequence of the Order.  He deliberately chose not to appeal for all these four years.  This is hardly a valid explanation for the delay.

13.  Now, for no reason, he attempts to invoke the judicial process again.  The only inference is that he is attempting to delay the repatriation process.  This is clear abuse of legal process.

14.  For all these reasons, his intended appeal has no prospect of success at all.

Prejudice to the respondent

15.  As for prejudice to the proposed respondent, it is unlikely that this issue would 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. 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.  This application does not raise any questions of general public importance.  Allowing it may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

16.  In summary, there is no valid explanation for a gross delay of more than four years in lodging the appeal.  The Applicant could advance no arguable ground of appeal.  It is a clear abuse of legal process to challenge a decision without proper and good ground of appeal and which is bound to fail.  The Applicant has been deliberately escaping the consequence of the Order which he seeks leave to appeal against.  His application was obviously raised for an ulterior motive of delaying his repatriation process.   This is another 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.