Re Hassan Zaib

HCAL 556/2019

[2022] HKCFI 2349

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 556 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 28 April 2022 (the “Summons” or “Leave Application” as appropriate) for extension of time to appeal the order of this Court dated 25 March 2022 (the “Order”) refusing him leave to apply for judicial review of the decision of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) dated 21 February 2019 (the “Decision”).

2.In his Summons, the Applicant claimed that he could not have applied within time because he was affected by Covid-19. But, in his supporting affirmation, he alleged that he did not receive the Order timely. Thirty-four days had lapsed since the date of the Order. To assist him in presenting a proper case, this Court gave him directions by letter dated 6 May 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 Leave Application;

(b) the date he contracted Covid-19, exhibiting supporting evidence including evidence of reporting the same to the authority; and

(c) 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. He did not respond. The letter was posted to him at his address given by him eight days ago in his Summons. It has not been returned through the post. The delivery service of Hong Kong Post is usually very reliable. There was nothing to suggest the Applicant had moved within those eight days or had not received the letter. He is deemed to have declined providing particulars of his explanation for the delay, supporting evidence and his grounds of the intended appeal.

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 success of the intended appeal;

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

Length of delay and reasons for the delay

4.Any person dissatisfied with the order of the court may appeal that order within 14 days after it was made. By 28 April 2022 when the Summons was filed, 34 days had lapsed since the date of the Order. The application is 20 days out of time. Though it was not a particularly long period, it is nevertheless very substantial in the context of a fourteen-day appeal period. Despite specific directions were given requiring him to give particulars of his explanation and supporting evidence, the Applicant declined to do so. The only reasonable inference is that he has no explanation for the delay and no grounds of appeal.

Prospect of the intended appeal

5.The ultimate subject matter which the Applicant seeks to challenge in the intended judicial review is the finding of the Board in its Decision. The Applicant declined providing his grounds of intended appeal. The only way the Court could assess the prospect of success of his intended appeal is to re-examine the Decision afresh. 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. 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 Decision and 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

6.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. Allowing the application may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

7.The Applicant has no explanation for the delay and no arguable grounds of appeal. 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, his application for extension of time to appeal is refused.

The applicant is not represented