RE ALI MOHAMMED RASHID

HCAL 1492/2018

[2022] HKCFI 514

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1492 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 for extension of time to appeal the order of Deputy High Court Judge CP Pang (“DHCJ Pang”) dated 18 November 2020 (the “Order”) refusing to grant him leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”). On 4 December 2020, 16 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 two 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 2 December 2020, the time to appeal has expired. The application for leave to appeal is two days out of time. The breach is not significant and may readily be condoned if a reasonably plausible explanation is proffered.

5.  In his summons, the Applicant advanced the following reasons for applying for leave to appeal the Order out of time:

“… I received the Order from the Court on 03/12/2020 but it’s dispatched from the Court on 18/11/2020 which was after 14 days of appeal. So it is my kindly request to the Court to please give some time of extension to file some documents and appeal again in Your Honour’s Court. As I will face hardship if I return back to my Country India because my life is in Danger in my Country.”

In his supporting affirmation filed on the same date, he repeated that he received the Order on 3 December 2020. He wrote:

“Respectfully, I write this affirmation to (illegible) the Court that I received an Order from the Court on 03/12/2020 as the letter was dispatched from the Court on 18/11/2020. So It is my kindly request to the Court to please give some time of extension to me.”

6.  As may be gathered from the summons and the affirmation, the Applicant’s explanation for the delay in appealing is that when he received the Order, the 14 days’ time to appeal had expired and that his ground for appeal is that his life will be in danger if he is refouled back to India. He also seemed to confirm that the Order was dispatched by the Court on 18 November 2020, the date stated on the Order. On the face, it is an outright admission of late application with no explanation for the delay in lodging an appeal. The sole ground he gave for the appeal is that his life will be in danger, if he is refouled. This is not a valid ground of appeal.

7.  On 21 December 2021, this Court gave the Applicant directions by letter requiring him to file a statement within 14 days of the directions stating when he received the Order and explaining for the delay in lodging his appeal or in receiving the Order and to exhibit supporting evidence, such as the envelope containing the Order and showing the date of posting, if the delay is related to late receipt of the Order. He was also advised that his application will be determined on paper after 21 days from the date of the directions, regardless whether the above directions have been complied with.

8.  The directions were designed to let the Applicant confirm beyond any doubt that when he received the Order the time to appeal has already expired and to explain the reason for the late receipt of the Order or delay in appealing, which he has hitherto failed to give. For example, the Order may somehow have been delivered to a wrong address or received by the wrong recipient and then re-directed to him, or the address may somehow have become inaccessible; or he may for some reason, such as illness or detention in custody, be prevented from initiating the appeal procedure. The Applicant never responded. There is therefore simply no explanation for the delay in appealing.

Prospect of success of the intended appeal

9.  The Applicant’s sole ground of application is that his life will be in danger, if refouled. Whether his life will be in danger is a question of fact for the Director of Immigration (the “Director”) or the Board. In raising this ground of appeal, the Applicant is challenging the finding of fact of the Board. 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 will 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].

10.  I have carefully examined the Call-1 Form. I am satisfied that DHCJ Pang had rigorously examined the Decision, the papers and the evidence with anxious scrutiny and 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; and observed a very high standard of fairness. The Board disbelieved the Applicant. It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds. That includes a finding that the Applicant had failed to prove his feared harm and risk if refouled back to India. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness, unreasonableness and irrationality. DHCJ Pang has scrutinized the decision of the Board and satisfied himself that its decision has not been so vitiated. I agree with that conclusion. The Applicant’s sole intended ground of appeal being a challenge of the Board’s finding of fact is wholly unarguable. The intended appeal has no prospect of success at all.

Prejudice to the respondent

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

Conclusion

12.  The delay is short and may be readily condoned, if the Applicant could proffer a reasonably plausible explanation. However, there is no valid explanation and no arguable ground 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, the Applicant has failed to do so. The only reasonable inference is that he has no explanation for the delay and no arguable ground of appeal. His application is an 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.