RE HOSSAIN BILLAL

HCAL 2786/2019

[2022] HKCFI 1808

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2786 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 3 May 2022 seeking extension of time to appeal the order of Deputy High Court Judge Li (“DHCJ Li”) dated 24 March 2022 (the “Order”), refusing him leave to apply for judicial review of the decision of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) dated 9 September 2019 (the “Decision”).

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. The application is two months and eleven 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 delay and explanations for the delay

4.  By 3 May 2022, the application is 26 days out of time. In the context of a 14-day period of appeal, the delay is substantial.

5.  His application for extension of time is framed in the following manner in the summons:

“I want to appeal against the decision of the High Court but I did not get that decision letter. Please give me opportunity to appeal.”

In his supporting affirmation, he averred:

“Affirmation for extension of time to appeal, as I failed to appeal. I did not get High Court judgment timely.”

6.  His summons and supporting affirmation are merely a statement of his wish to be given extension of time to appeal and a statement of fact that he had not received the Order. That statement of fact is just a bare assertion and is not supported by any evidence. It gives no clue as to why he had not received the Order and how he came to know about the Order having been made. Besides, he did not state the grounds of his intended appeal. To enable him to present a proper case for seeking leave to appeal out of time, directions were given to him by letter dated 24 May 2022 to file a statement or affirmation stating:

(a)  the date and circumstances under which he first received the Court Order or information about the outcome of his application for leave to apply for judicial review; and

(b)  the grounds of his intended appeal.

The directions were designed to enable him to meet the requirements to qualify for extension of time as set out in Jagg Singh.

7.  In purported compliance with the directions, the Applicant replied by letter dated 31 May 2022 as follows:

“I beg most respectfully to state that I failed to apply appeal in time because when I got the letter it was already passed the time and Hong Kong Covid19 situation was very worst.

Hopefully I wish my time will be extended.”

8.  The assertion in this letter that “when I got the letter it was already passed the time” is just repeating his assertion in the supporting affirmation that he did not receive the judgment timely. It adds nothing to what the Court considered was inadequate. He was asked to state the date when he received the Order. That was to enable the Court to assess the reasons for the delay. He was also asked to state the circumstances when he received the Order. That was to enable the Court to assess the reasonableness of his explanation. He obviously failed or evaded to provide the information. The inference is that he has no explanation for the delay. He was just sitting on his right.

9.  The Applicant also tried to put the blame on Covid-19, but failed to explain how that caused his delay to appeal. In the absence of the date the date and circumstances under which he first received the Order, it is also impossible to assess the reasonableness of his explanation.

Prospect of success of the intended appeal

10.  The Applicant declined to state the grounds of his intended appeal. This makes it difficult to assess the prospect of success of his intended appeal. When assessing the prospect of success of the intended appeal, the Court must bear in mind that 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. In a judicial review, the Court could only 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].

11.  DHCJ Li heard the Applicant’s application for leave to apply for judicial review. He had in mind the above principles: see paragraph 17 of the Form Call-1. He examined the Board’s Decision for errors of law, procedural unfairness or irrationality. He agreed with the finding of the Board that the Applicant is not truthful and his evidence could not support any real risk of harm: see paragraph 18 of the Form Call-1. He found no errors of law or procedure and that the decision of the Board is reasonable: see paragraph 19.

12.  Having rigorously re-examined the Decision, the papers and the evidence with anxious scrutiny, I was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the issues; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. As stated in paragraphs 17 and 18 of the Form Call-1, the Board found the Applicant not a witness of truth and did not accept his evidence. Hence, the Board was not satisfied that the Applicant had discharged the burden of proving the factual basis required to support his claim of fear from harm. This Court could detect no errors of law in the Decision or procedural unfairness in the non-refoulement process or irrationality in the Board’s Decision. The Applicant’s application for judicial review was in substance a challenge of the Board’s finding of fact. His intended judicial review is wholly unarguable and has no prospect of success at all. Accordingly, leave to apply for judicial review was rightly refused.

13.  Furthermore, the Applicant could raise no criticism against the decision of DHCJ Li. There is absolutely no prospect of success in his intended appeal.

Prejudice to the respondent

14.  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. It may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

15.  The delay is substantial. There is no valid explanation for the delay and no arguable grounds of appeal. 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. Despite having been given a last opportunity to explain the delay in lodging the appeal and to furnish his grounds of appeal, the Applicant failed to give any reasonable explanation for the delay and arguable ground of appeal. The only reasonable inference is that his appeal is a deliberate abuse of the legal process for some secret motive. 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.