SHARJEEL v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2099/2018

[2023] HKCFI 434

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2099 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 3 November 2022 (the “Summons”) for extension of time to appeal the order of this Court dated 20 September 2022 (the “Order”) refusing his application for leave to apply for judicial review (the “Leave Application”) of the decision (the “Decision”) of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 20 September 2018.

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 the judge’s order to the Court of Appeal within 14 days after such order was made. By the time when the Summons was filed, the application is thirty days out of time, which is not insubstantial in the context of a fourteen-day appeal period.

THE LAW

3.  In Jagg Singh v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office[1] and Director of Immigration and William Lam[2], 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 in the intended appeal; and

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

LENGTH OF DELAY AND REASONS FOR THE DELAY

4.  The Applicant’s explanation for the late appeal as set out in his supporting affirmation is as follows. His letter box is shared among residents of Flats A, B and C of the building where he lived and usually there are many letters in the letter box. He checked the letter box for his mails from time to time but did not discover any letters from the Court. It was only on 28 October 2022 when he received information from an immigration officer about his case that he checked the letter box and found the letter containing the Order and Form CALL-1. Then, he applied for leave to appeal out of time on 3 November 2022.

5.  According to the court record, the Order and Form CALL-1 were sent to him on 20 September 2022. The court staff are under very strict instructions to send court orders on the date as stated on the order. The delivery service of Hong Kong Post is usually very reliable. There is no dispute that the Order had in fact been delivered. Had the Applicant actually checked the letter box from time to time and carefully as he claimed, he ought to have discovered the Order well before he was informed by the immigration officer. He is either not telling the truth, or was negligent. In either event, he does not have a reasonable explanation for the delay. However, the delay, not being very substantial, is not one which this Court would not condone if there is an arguable appeal.

PROSPECT OF SUCCESS OF THE INTENDED APPEAL

6.  Directions were given to the Applicant by letter dated 3 January 2023 to file a statement stating, inter alia, the grounds of his intended appeal. However, in his statement filed with the Court on 6 January 2023 in response, the Applicant did not furnish any grounds of his intended appeal. In all fairness to the Applicant, instead of dismissing his application for want of any grounds of intended appeal, this Court conducted another rigorous examination of the Decision of the Board for errors of law, procedural unfairness and irrationality in its Decision.

7.  As mentioned in paragraph 17 of the Form CALL-1, the Applicant did not put forward any grounds of judicial review. As explained in paragraph 18 of the Form CALL-1, in the absence of any proper ground of application, the Applicant’s Leave Application had to be considered by this Court undergoing a rigorous examination of the Board’s Decision with anxious scrutiny for errors of law, procedural irregularity and irrationality in the Decision. The Board found the Applicant incredible and did not accept his evidence that he suffered ill-treatment because of his involvement in politics. It therefore did not believe the Applicant would face any real risk of harm upon his return to Pakistan from supporters of a rival political party and therefore dismissed his appeal. The Board’s finding and reasons for its finding are summarized in paragraphs 10 to 15 of the Form CALL-1. The Board’s Decision is basically a finding of fact which the Court in a judicial review will not interfere save for errors of law, procedural unfairness and irrationality in its Decision. For reasons as explained in paragraph 19 of the Form CALL-1, this Court could not find any such vitiating elements and, hence, refused his Leave Application.

8.  The Applicant has not advanced any grounds of his intended appeal. In effect, he is seeking to challenge this Court’s finding that the Board’s Decision had not been tainted by any of the above vitiating elements which is the sole ground for which this Court may review the Decision of the Board; but he has not provided any basis for challenging this Court’s decision. Having rigorously re-examined the Decision, the Form CALL-1 and all the papers with anxious scrutiny, the Court is unable to detect any such vitiating elements. Thus, the Applicant’s intended appeal has no prospect of success.

PREJUDICE TO THE RESPONDENT

9.  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 which has no prospect of success 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 to proceed may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

CONCLUSION

10.  The Applicant has no valid explanation for the delay. 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.