Re Hussain Imran

HCAL 2300/2018

[2021] HKCFI 1683

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2300 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 dated 25 May 2021 seeking extension of time to appeal the order of this Court dated 21 April 2021 (the “Order”) refusing his leave to apply for judicial review of the decision of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) dated 19 October 2018 (the “Decision”). 

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.  By 5 May 2021, the time to appeal has expired.  The application for leave to appeal is 20 days out of time. 

3.The notice of hearing of the application for leave to apply for judicial review (ie Form 86) was sent to the Applicant’s reported address at Mong Kok by post.  He attended the hearing on 8 April 2021.  At the hearing, he informed the Court of his change of address to Pat Heung.

4.The Order of this Court was sent to him by post to the address at Pat Heung on 21 April 2021 within two weeks of the hearing.  It was returned on 27 May 2021. 

5.On 25 May 2021, the Applicant took out the present summons stating the Mong Kok address as his residential address.  He is 20 days late. 

6.The delay is self-created.  He lived at the Mong Kok address at the time of the hearing and informed the Court that he had changed his address to Pat Heung which created the non-delivery of the Order.  Now, he claimed he reverted back to the Mong Kok address within 13 days.  But, he never informed the Court of this change.  Putting aside the element of suspicion surrounding his motive in what he did, he is responsible for the delay and there was no valid excuse.

7.By a letter dated 1 June 2021, this Court gave directions for filing of supporting information and evidence explaining the delay and his grounds of appeal.  On 7 June 2021, he wrote to this Court stating:

(1)  “May be post man do not keep my letter in my box.”

(2)  “I did not change my address too.”

(3)  “Ad-judicator did not give me any lawyer.  I could not     get any point of law as there was no lawyer help me.”

(4)  “Interpreter did not help me.  Multiple times in my       hearing he became angry to me.”

The first two assertions are explanations for the delay.  The third and fourth assertions are grounds of appeal.

The Law

8.In AW v Director of Immigration and William Lam[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)  explanation for the delay;

(3)  merits of the substantive application;

(4)  prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time; and

(5)  whether the application raises questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.

Reasons for the delay

9.The first assertion is speculation.  The second assertion is problematic.  If he had not changed his address, he told lie to this Court at the hearing on 8 April 2021 to deceive this Court.  If he had really changed his address, he made a false misrepresentation with intent to deceive this Court into granting him extension of time.  Either way, the application is not bona fide made.  As explained above, while the Court accepted that he did not receive the Order, the delay was self-created; and there was no valid explanation for the delay.

Grounds of appeal

10.He relies on two grounds of appeal, lack of legal representation and language assistance. These grounds are probably raised in the context of his claim of procedural unfairness.  These grounds were never raised in the application for leave to apply for judicial review.  It casts serious doubts on their genuineness.  In any event, these are not valid grounds.

11.In Re Zafar Muazam[2], Re Zunariyah[3], Re Zahid Abbas[4], Re Tariq Farhan[5], and Re Lopchan Subash[6], the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security[7] nor the judgment of FB v. Director of Immigration[8] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings.  The real question is whether the claimant is prejudiced for want of legal and language assistance.

12.The Applicant had the benefit of legal representation in preparing his non-refoulement claim form, in attending the screening interview and presenting his case to the Director of Immigration (the “Director”).  He had no complaint about lack of legal assistance up to that stage.  His complaint is that he had no legal assistance thereafter.  However, all the benefits that legal representation could have afforded him are contained in his written submissions, his non-refoulement claim form and his answers in the screening interview given under legal advice.  All these had been presented to the Director, which were then presented to the Board.  He also had the services of a qualified interpreter at the oral hearing before the Board to assist him in presenting his appeal.   Despite he was not legally represented at the oral hearing before the Board, all the benefits which legal representation could have afforded him were before the Board.  Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation in the process before the Board.  He suffered no prejudice due to lack of legal representation before the Board.  This ground has no prospect of success.

13.In Re Karamjit Singh[9], the Court of Appeal adopted the rationale of the Court of First Instance that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time a claimant desired or required.  It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English.  In the circumstances, he has to live with or cope with his language disability.  He cannot expect to have the luxury of any documents to be fully translated into his first language for his benefit.  He has to find assistance himself from among his friends and his ethnic community.  Indeed, the Applicant was able to file an adequately well written Form 86 in English himself.  As for his complaint about the interpreter not being helpful and scolding him, it is all speculation on his part.  He gave no particulars.

14.The Applicant may probably argue that it was procedurally unfair because the appeal bundle is written in the English language which he is not familiar with.  Be that as it may, the appeal bundle is basically made up of his non-refoulement claim form, the record of his screening interview, the Notice of Decision of the Director dated 12 January 2018 (the “Notice”) and the Country of Origin Information (“COI”).  He knew what was contained in his non-refoulement claim form which was filled in by him with the assistance of an interpreter and the Duty Lawyer Service.  He knew what was contained in the record of screening interview which he attended with the assistance of interpreter and legal representation.  The record had been read back to him and he signed to acknowledge that he understood and agreed with the contents and that no amendment was necessary.  Recognizing the limitation in his foreign language ability and the importance of his claim, he ought to have taken notes, at least very brief ones, to remind him of what he had said or written rather than relying on the host country to provide him the convenience of interpretation at his fingertips.  The Notice including the COI were issued by the Director on 12 January 2018.  The hearing of the Board was held on 12 September 2018.  In between, he had eight months to seek assistance from within his circle and means.  It lies ill in his mouth to say that for all these months he did not have sufficient time to prepare for his appeal.

15.The Applicant had the services of a qualified interpreter at the oral hearing before the Board to assist him in presenting his appeal.  His complaint about lack of legal and language assistance is more apparent than real. 

16.The COI relied on by the Director and the Board are all from credible and official sources.  However, as the Applicant failed to prove his factual case of fear and risk, the Board did not find it necessary to consider the COI.  Any complaint about the COI not having been translated to him is irrelevant.

17.There was no procedural unfairness.

Prejudice to the respondent

18.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.   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.  This application does not raise any questions of general public importance.  Allowing the application may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

No questions of general public importance

19.The application does not raise any questions which are likely to have to be resolved by the courts in any event.

Conclusion

20.Though the Applicant was only 20 days late, the delay was self-created for dubious motive.  It was not insubstantial.  Though the delay is not fatal, the Applicant has no valid explanation for the delay. 

21.The proposed grounds of appeal are new grounds which had not been raised in the leave application.   For that reason alone, they could not constitute good grounds of appeal.  However, having fully considered the merits, I am of the view that even if these grounds were allowed to be raised on appeal, the intended judicial review had no prospect of success.  It would be a futile exercise of its discretion to grant extension of time to enable the Applicant to apply for a judicial review which is bound to fail.  To allow such an un-meritorious challenge to proceed would be prejudicial to the intended respondent and the administration.  The application does not raise any questions of general public importance.  Accordingly, the application for extension of time to appeal the Order of this Court is refused.

The applicant is not represented