RE MUHAMMADSHAKEEL

HCAL 522/2019

[2022] HKCFI 2570

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 522 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 17 May 2022 for extension of time to appeal the order of this Court dated 28 April 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”). 

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. 

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 17 May 2022, 19 days lapsed since the Order was made.  The Applicant is only five days out of time, which is not very substantial. This Court was prepared to condone his delay if he has a good ground of appeal.  To assist him in presenting a proper case for extension of time, this Court gave him directions by letter requiring him to file an affirmation or statement within 14 days of the directions stating the following:

(a)  the date and circumstances under which he first received the Order or information about the outcome of his application for leave to apply for judicial review of the Decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office; and

(b)  the grounds of his intended appeal.

He was also advised that the application for extension of time will be determined on paper seven days thereafter, regardless whether the above directions have been complied with.  The letter was sent to him at his address as stated in his summons and affirmation dated 17 May 2022.  The letter had not been returned through the course of mail.  The delivery service of Hong Kong Post is usually very reliable.   There is nothing to suggest the Applicant had not received the letter.  But he did not respond.

5.  The directions were designed to ascertain the length of the delay and to enable the Applicant to explain the reason for the late receipt of the Order or the delay in appealing, which he has hitherto failed to give.  For example, how and when he came to know about the Order; and the credibility of his complaint of non-receipt of the Order.  As he did not respond, there are simply no explanations for the delay in appealing. 

Prospect of success of the intended appeal

6.  The Applicant did not advance any ground of appeal in his summons or affirmation.  Despite the Court’s specific request for his grounds of appeal, he did not respond.  Without even knowing what his grounds of appeal are, it is impossible to assess the prospect of success of the intended appeal.

7.  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].  In the absence of any specific grounds challenging the Court’s decision in refusing leave to apply for judicial review, in an application to appeal that decision out of time, the court can only focus on the above vitiating elements in the decision.

8.  I have rigorously re-examined the Form Call-1, 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.  I am satisfied that the Board’s decision has not been so vitiated.  Without even knowing his grounds of appeal, it is impossible to assess the prospect of success of the intended appeal.  On the material now available, the Applicant’s intended appeal has no prospect of success at all.

Prejudice to the respondent

9.  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

10.  Though the delay is not substantial, there is no valid explanation for the delay 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 and furnishing his grounds of 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.