Re Mahmood Tariq

HCAL 2112/2018

[2022] HKCFI 2057

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2112 OF 2018

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Before:  Deputy High Court Judge To in Chambers

Date of Decision:  12 July 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 by summons filed on 11 May 2022 (the “Summons”) for extension of time to appeal the order of Deputy High Court Judge Li dated 30 March 2022 (the “Order”) refusing his application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 3 August 2018.

2.In his Summons and his supporting affirmation, the Applicant alleged that he never received the Order. The explanation is just a bare assertion and is lacking in substance. To assist him in presenting a proper case, this Court gave him directions by letter dated 10 June 2022 to file a statement within 14 days of the letter stating:

(a)  the date and circumstances under which he first received the Court 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 (exhibiting documentary evidence, such as the envelope containing the Court Order, if available); and

(b)  the grounds of his intended appeal.

He was also informed that his application will be determined on paper 7 days thereafter without a hearing whether he has complied with the above directions or not.

The Law

3.In Jagg Singh v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office[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)  reasons for the delay;

(3)  prospect of the intended appeal;

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

Length of delay and reasons for the delay

4.By 11 May 2022 when the Summons was filed, 42 days had lapsed since the date of the Order. The application is 28 days out of time, which is very substantial in the context of a fourteen-day appeal period. His explanation for the delay as stated in his letter lodged pursuant to the Court’s direction is as follows:

“I did not get the letter in time. Immigration officer call me and asked me to apply appeal or return the home country. The same date I came to the High Court, search my file and apply to extend time.”

Read in its proper context, the Applicant is alleging that on the date he applied for extension of time, namely 11 May 2022, he was told by an immigration officer to appeal the Order or to return to his home country. He then made a search in the registry and found that his application for leave to apply for judicial review had been refused.

5.His explanation is just a bare assertion not supported by any independent evidence. He was instructed to exhibit documentary evidence in support. He claimed to have been informed by an immigration officer on 11 May 2022 that his leave application was refused. His account is not supported by evidence from the immigration officer. Even if the officer had in the normal course of processing his refoulement informed him of the result of his leave application, that does not mean the Applicant had in fact not received the Order. His claim that he had made a search in the Registry is also not supported by any documentary evidence. In fact, an examination of the court file showed no search had been made in respect of his file. This cast serious doubt on the credibility of his account. The court staff are under strict instructions to take great care in posting court orders and correspondence. The file copy of the correspondence show that the Order had been sent to the correct address of the Applicant. The delivery service of Hong Kong Post is usually reliable. The Order has not been returned through the course of mail. Having tested his account against all the surrounding circumstances, the Court is not satisfied that his account is genuine.

Prospect of the intended appeal

6.Despite directions had been given for the Applicant to state his grounds of appeal, he declined providing his grounds of the intended appeal. The only way the Court could assess the prospect of success of his intended appeal is to re-examine the Decision afresh. The ultimate subject matter which the Applicant seeks to challenge in the intended judicial review is the finding of the Board in its Decision. In an application for leave to apply for judicial review, an applicant may only challenge the Board’s finding on the grounds that it was made as result of errors of law, procedural unfairness and that the Decision was irrational. All these considerations have been set out in the Form Call-1. The decision to refuse his application for leave to apply for judicial review was made after rigorous examination of the Decision and all the papers with anxious scrutiny. Given the limited scope in which an applicant may challenge the finding of the Board in a judicial review and having rigorously re-examined the Form Call-1 with anxious scrutiny, I am not satisfied that there is any prospect of success in the Applicant’s intended appeal.

Prejudice to the respondent

7.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.

Conclusion

8.The Applicant has no arguable grounds of appeal and has no valid explanation for the substantial 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, the application for extension of time to appeal is refused.

The applicant is not represented