Re Peer Mohamed Varusai Meeran

HCAL 1913/2018

[2022] HKCFI 724

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1913 OF 2018

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Before:  Deputy High Court Judge To in Chambers

Date of Decision:  18 March 2022

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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 this Court dated 30 July 2021 (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 21 September 2021, fifty-three 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. 

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 21 September 2021, the time to appeal has expired.  The application for leave to appeal is 39 days out of time.  In the context of a 14-day period of appeal, the breach is substantial.

5.The Applicant did not put forward any reason for applying for leave to appeal out of time.  He merely stated his intention to seek leave.  In his supporting affirmation filed on the same date, he wrote:

“… First of all I am cannot speak English and do not understand Court Procedure because I should need seek help some one my friend. Attached copy of Exhibit A”.”

6.As may be gathered from his summons and affirmation, the Applicant’s explanation for the delay in appealing is that he could not read and write English and had no legal knowledge about court procedure.  He needed time to seek assistance from his friend.  None of these is a valid reason. However, this Court is most accommodating to non-refoulement claimants who have language difficulties in pursuing their claim for protection.  But, even accepting his explanation for the delay, he advanced no grounds of appeal.  

7.On 24 December 2021, this Court gave the Applicant directions by letter requiring him to file a statement within 14 days of the directions setting out his explanation for the late application and grounds of appeal.  He was also advised that the application for extension of time will be determined on paper after 14 days from the date of the directions, regardless whether the above directions have been complied with.  

8.The Applicant replied by a letter written in Tamil.  Usually, this Court will not consider any communication other than in either of the official languages, ie Chinese or English.  Out of extreme caution, the Court obtained a translation from the Judiciary’s freelance interpreter to ascertain the contents of the letter.  In gist, the Applicant repeated in the letter his assurance that whatever he had submitted before is true and he will provide whatever document available to the Court to support his claim.  He enclosed a copy of First Information Report issued by Tamil Nadu Police Department in respect of a complaint lodged on 26 May 2012 at 11:30 hours by Varusai Meeran as “Petitioner” against Ashram as “Counter Petitioner” regarding the Counter Petitioner causing nuisance to the “Petitioner’s” wife by telephoning her.  He repeated his difficulties to communicate in English and asked for an oral hearing for his application.

9.This letter and the First Information Report added nothing new to his case.  Similar complaints of nuisance to or interference with his family had been mentioned in paragraphs 12 to 14 of the Call-1 Form.  Registration of the complaint by the police also contradicted his allegation of police inaction mentioned in paragraph 15 of the Call-1 Form.

10.The directions were designed to ascertain the length of the delay and to specifically invite him to inform the Court of the grounds of his intended appeal to enable the Court to determine the merits of his appeal. Even allowing him for his language disability, he failed to inform the Court the grounds of his intended appeal, not even any rudimentary ground.  He only repeated his assertion and assurance that what he said was true.  The essence of his appeal is to challenge the Board’s finding of fact.  He disclosed no arguable grounds of appeal. 

Prospect of success of the intended appeal

11.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, the court can only re-focus on these vitiating elements in the decision when considering an application to appeal that decision out of time.

12.I have rigorously re-examined the Call-1 Form, 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; correctly identified the issues and observed a very high standard of fairness.  The Applicant’s sole intended ground of appeal being a challenge of the Board’s finding of fact is wholly unarguable.  It has no prospect of success at all.

Prejudice to the respondent

13.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.

Request for oral hearing

14.Despite he was specifically invited to provide his grounds of appeal, the Applicant has failed to do so.  He did not even have a rudimentary ground of appeal.  It would serve no purpose to convene an oral hearing only to hear his repeated assertion and reassurance that what he told the Board was true; and which could not in any event constitute any arguable ground of appeal with any chance of success.  Having given the Applicant generous allowance for his language disability and having rigorously examined the papers, the Court considered that the high standard of fairness has been observed despite an adverse decision is to be made against him without an oral hearing as he had requested.

Conclusion

15.The delay is very 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 to furnish 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.

The applicant is not represented