Re Ripon Mohammed

HCAL 2030/2019

[2022] HKCFI 2174

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2030 OF 2019

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Before: Deputy High Court Judge To in Chambers

Date of Decision: 22 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 4 May 2022 (the “Summons”) for extension of time to appeal the order of Deputy High Court Judge Li (“DHCJ Li”) dated 28 February 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 17 May 2019 (the “Leave Application”).    On 19 May 2022, the court received a memorandum from the Legal Aid Department giving notification of the Applicant’s application for legal aid.  Probably, soon after filing his Summons, he made an application for legal aid.

The Law

2.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 success in the intended appeal;

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

Length of delay and reasons for the delay

3.By 4 May 2022 when the Summons was filed, 65 days had lapsed since the date of the Order.  The application is 51 days out of time, which is very substantial in the context of a fourteen-day appeal period. 

4.In his Summons and his supporting affirmation, the Applicant gave no explanation for the delay in making the application and did not put forward any grounds of appeal.  Having regard to the nature of this application and notwithstanding his legal aid application, to assist him in presenting a proper case, this Court gave him directions by letter dated 2 June 2022 to file a statement within 14 days of the letter stating:

(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 Board;

(b)  the grounds of his intended appeal; and

(c)  his submissions, if any.

He was also informed that his application for extension of time will be determined on paper without a hearing 21 days after the date of these directions regardless of whether he has complied with the directions or not.

5.In purported compliance with the directions, the Applicant lodged a letter with the Registry on 23 June 2022 making two points.  First, he said he had not continued his legal aid application and is now acting without assistance from the Legal Aid Department.  Second, he requested to make a subsequent claim.  This Court has no authority to process his subsequent claim.  He cannot make a subsequent claim by way of appeal against the Order dismissing his application for judicial review of the Board’s decision refusing his original claim.  He did not provide any grounds of his intended appeal.  He did not respond to the Court’s direction assisting him in processing his application.  In fact, the way he responded to the Court’s directions indicates he had no intention to prosecute his application for extension of time to appeal.  His application for legal aid was possibly an attempt to delay his repatriation and an abuse of the non-refoulement proceedings.

Prospect of success of the intended appeal

6.As the Applicant deliberately declined furnishing the grounds of his intended appeal, it is very difficult for this Court to assess the prospect of success of his intended appeal.  Given the limited scope which the court in an application for judicial review could intervene the decision of the decision maker, this Court could only rigorously examine the decision of Deputy High Court Judge Li and the decision of the Board with anxious scrutiny for errors of law, procedural unfairness and irrationality in the decisions: see Nupur Mst v Director of Immigration[2]. Having done so, I am satisfied that the decisions are irreproachable.  The intended appeal has no prospect of success.

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 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

8.The Applicant has no valid explanation for the substantial delay. His intended appeal carries the hallmark of abuse of proceedings and 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