RE HUSSAIN ADNAN

HCAL 1525/2021

[2022] HKCFI 1445

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1525 OF 2021

____________

____________

______________

D E C I S I O N

______________

Introduction

1.  This is the Applicant’s application by summons for extension of time to appeal the order of Deputy High Court Judge P. Li (“DHCJ Li”) dated 15 February 2022 (the “Order”) refusing to grant him leave to apply for judicial review of the decision of the Torture Claims Appeal Board/ the Non-Refoulement Claims Petition Office (the “Board”). On 12 April 2022, 56 days after the Order was made, the Applicant applied by summons for leave to appeal the Order out of time.

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 against the judge’s order to the Court of Appeal within 14 days after such order. The Applicant is 42 days out of time, which is substantial in the context of a 14-day period of appeal.

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.

Length of delay and reasons for the delay

4.  By 1 March 2022, the time to appeal has expired. The application for leave to appeal is 42 days out of time. The breach is substantial in the context of a statutory time limit of 14 days.

5.  In his supporting affirmation filed on the same date as his summons, he advanced the following reasons for applying for leave to appeal the Order out of time:

“I am the Applicant herein. I am presently detained by the [Immigration Department] authorities. The decision made by the High Court Judge P Li has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country. Moreover, the Social visits & Legal Visits were temporarily suspended by the Immigration owning to the present pandemic situation. Exchange of correspondence by post were also taking longer than one can assume and that is because of the security measures as every post is thoroughly checked by the authorities to ensure no contraband’s were being exchanged. Due to which I was unable to file the Appeal to Court in time (i.e. 14-days). In the Circumstances, I request extension of time be granted to me to file an appeal.”

The Applicant is in custody in Castle Peak Bay Immigration Centre. In short, his explanation for the delay is the delay in communication and suspension of social visits and legal visits caused by the pandemic. His ground of appeal is procedural unfairness in being denied the opportunity to clarify his case and situation in his country.

6.  I accept without question that there may be delays in communication caused by the pandemic, but a delay of 42 day calls for an explanation and supporting evidence. The Applicant was and is in prison custody where facilities are available for making affirmations and filing documents with court. He has not even started explaining why it took him 56 days to raise the appeal; why suspension of social visits and legal visits materially contributed to the delay, let alone adducing supporting evidence. The Court could have invited evidence from the Applicant. However, in view of the absence of an arguable ground of appeal and absence of prospect of success in the intended appeal and judicial review, this is not necessary. The Court is prepared to give him the benefit of doubt in the face of the pandemic and condone his delay.

Prospect of success of the intended appeal

7.  The Applicant’s ground of appeal as stated in his summons is that he wished to advance “a new sole ground of appeal”. In his supporting affirmation, he elaborated this new sole ground as “the High Court Judge P Li has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country”.

8.  The Order was made by way of paper determination without a hearing. It is true that the Applicant had no opportunity to make submissions to DHCJ Li about his grounds for judicial review or to clarify his case and situation in his home country. However, it is not impermissible for an application for leave to apply for judicial review to be determined on paper without an actual hearing. There is no procedural unfairness unless the Applicant suffered prejudice as a result of the absence of an actual hearing. For example, he is thereby deprived of the opportunity to pursue his application which has a reasonable prospect of success.

9.  The subject matter of the hearing before DHCJ Li was the decision of the Board. What underlies the Order, which the Applicant sought to appeal, is the absence of a meritorious ground or prospect of success in the intended judicial review. It must be borne 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. The function of the court in a judicial review is to scrutinize the Board’s decision and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[2].

10.  Given the limited role of the court in an application for leave to apply for judicial review, what the court had to do was to rigorously examine the decision of the Board and focus on errors of law, procedural unfairness or irrationality in the decision. As the Applicant had advanced no grounds for his application for leave to apply for judicial review in his Form 86 or supporting affirmation, this examination may be carried out in his absence. On the evidence and materials before the court, DHCJ Li considered it appropriate to determine the application on paper without a hearing. That decision was un-reproachable. How can the Applicant now complain about unfairness for having been deprived of the opportunity to clarify his case and situation in her home country when he did not put forward any specific grounds of application in those regards?

11.  Furthermore, it is for the Board or the Director to make finding of the factual basis in support of the Applicant’s application for non-refoulement protection and not for the court in a judicial review of the Board’s decision. The Board has set out the Applicant’s case and its finding. These are succinctly summarized in paragraphs 4 to 10 and paragraphs 12 to 14, respectively, of the Form Call-1. The Board found the Applicant unreliable and evasive, his account vague and implausible and rejected his evidence. As a result, it found that the Applicant had failed to prove the factual basis in support of his claim for non-refoulement protection. All these are finding of facts solely within the province of the Board.

12.  In his application for leave to apply for judicial review, the Applicant’s grounds are that he disagreed with the decision of the Board and maintained that his life was in danger, if refouled. In essence, he was seeking to challenge the finding of fact by the Board framed as a judicial review. He did not complain about the Board having failed to take into account what he now wishes this Court or the Court of Appeal to allow him to clarify about his case and the situation in his home country. Accordingly, on the state of the evidence and material before the court, it was appropriate for the court to determine his application on paper.

13.  In paragraphs 16 to 18 of the Form Call-1, DHCJ Li found as follows:

“16. The evidence of the applicant was contradicted by his father’s evidence. The adjudicator had the chance to observe the manner they gave evidence. Her finding on credibility is reliable. I agree with the adjudicator. The applicant is not truthful. The adjudicator was right to reject his evidence.

17. Having considered the above, I agree with the findings of the Adjudicator. I do not find any error in law or in procedures. The TCAB decision was reasonable.

18. In my judgment, the Applicant’s claim is not reasonably arguable. There is no realistic prospect of success. I refuse leave for judicial review.”

14.  I have carefully examined the Form Call-1. I am satisfied that DHCJ Li had rigorously examined the Decision, the papers and the evidence with anxious scrutiny. I am 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; and observed a very high standard of fairness. DHCJ Li was satisfied that the Board’s decision had not been so vitiated; the intended judicial review had no prospect of success; and made the Order. The Order accords with the established legal principles applicable to judicial review. I agree with that conclusion.

15.  Now, apart from a vague suggestion of “clarify my case”, the Applicant gave no particulars as to what facts he wished to clarify and which had not been taken into consideration or ignored by the Board. He is not seeking to adduce fresh evidence about additional facts. The word “clarify” suggests that those facts were already before the Board and he wished to highlight them for DHCJ Li’s consideration. On the evidence, the Board found the Applicant untruthful and rejected his evidence. It found there was no evidence of torture, ill-treatment under BOR 3 and risk to life under BOR 2 and no evidence of persecution under the 1951 Convention relating to the status of Refugees. It found it would be safe for the Applicant to relocate either to Lahore, Karachi or Islamabad. These are finding of fact solely within the province of the Board. As the function of the court in a judicial review is limited to intervening only for errors of law, procedural unfairness or irrationality, it is not open to DHCJ Li to intervene the Board’s decision by exploring into those “clarifications”. In other words, even if the Applicant an opportunity to address or had actually addressed DHCJ Li about those “clarifications”, it would not have been open to the court to intervene. Thus, with or without being afforded the opportunity to make clarifications before DHCJ Li, the Applicant’s intended judicial review had no realistic prospect of success. And neither has his intended appeal against DHCJ Li’s decision in refusing his application for leave.

Prejudice to the respondent

16.  The prejudice to the proposed respondent and to public administration is obvious, if a challenge is allowed to proceed in the absence of an arguable ground of appeal with some prospect of success. The intended appeal 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

17.  Even condoning his delay, the Applicant’s intended judicial review has no prospect of success. It is a clear abuse of legal process to challenge a decision without proper and arguable grounds of appeal and which is doomed to fail. 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.