RE MUHAMMAD TANVEER

HCAL 2351/2018

[2022] HKCFI 2682

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2351 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 7 June 2022 (the “Summons”) for 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 24 September 2018 (the “Decision”).

2.  In his Summons, the Applicant claimed that he “did not get the chance” to appeal. In his supporting affirmation, he said he “did not get the High Court decision”. He did not actually explain why he did not receive the Order. He did not provide the grounds of his intended appeal. To assist him in presenting a proper case, this Court gave him directions by letter dated 27 June 2022 to file a statement setting out his grounds of appeal within 14 days of the letter. As at the date of this decision, he has not responded.

The Law

3.  In Jagg Singh v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office[1], 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 of the intended appeal;

(4) prejudice to the respondent if extension of time was granted.

Length of delay and reasons for the delay

4.  Any person dissatisfied with the order of the court may appeal that order within 14 days after it was made. By 7 June 2022 when the Summons was filed, 75 days had lapsed since the date of the Order. The application is 61 days out of time. It was a substantial delay in the context of a fourteen-day period for appeal. According to the Court record, the Order and Form Call-1 were sent to the Applicant’s address in Cheung Sha Wan Road as stated in his Form 86. The address as stated in his Summons is in Nelson Street. The only reasonable inference is that he did not receive the Order because he had moved without updating the Court with his new address. In Re Karamjit Singh[2] and Re Hasmi Rizwan Imran[3], the Court of Appeal held that it is the applicant’s duty to inform the court of his change in correspondence address and he has to bear the consequence of his failure to comply with that obligation.

Prospect of the intended appeal

5.  The ultimate subject matter which the Applicant seeks to challenge in the intended judicial review is the finding of the Board in its Decision. The Applicant declined providing his grounds of intended appeal. The only way the Court could assess the prospect of success of his intended appeal is to re-examine the Decision afresh. In an application for leave to apply for judicial review, an applicant may only challenge the Board’s finding on the grounds that it was made as result of errors of law, procedural unfairness and that the Decision was irrational. All these considerations have been set out in the Form Call-1.

6.  Having rigorously examined the Decision, the Form Call-1, the papers and the evidence with anxious scrutiny, I am satisfied that DHCJ Li and 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; and correctly identified the issues. The Board observed a very high standard of fairness. It found the Applicant not credible and was not satisfied that he would face any risk of harm if returned to Pakistan. It was on that basis that the Board found there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds. These are finding of facts which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such finding involved error of law, procedural unfairness, unreasonableness and irrationality. DHCJ Li had considered the Applicant’s grounds of judicial review. He could detect no error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. He considered the Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. He found the Decision of the Board is utterly without fault. Having similarly examined the Decision and Form Call-1 with anxious scrutiny, I agree with DHCJ Li’s conclusion.

7.  For the above reasons, the Applicant has no arguable grounds for judicial review. His proposed judicial review has no realistic prospect of success, neither has his intended appeal against DHCJ Li’s decision refusing to grant her leave to apply for judicial review. For this reason alone, it would be futile to grant leave to appeal out of time.

Prejudice to the respondent

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

Conclusion

9.  The Applicant has no explanation for the substantial delay and has no arguable grounds of appeal. 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.