Re Kamrankhan

HCAL 448/2019

[2022] HKCFI 2678

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 448 OF 2019

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Before: Deputy High Court Judge To in Chambers

Date of Decision: 2 September 2022

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DECISION

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Introduction

1.This is the Applicant’s application by summons filed on 18 July 2022 for extension of time to appeal the order of this Court dated 28 June 2022 (the “Order”) refusing his application for leave to apply for judicial review.

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 18 July 2022, the time to appeal has expired. The application for leave to appeal is six days out of time. The breach is not serious.

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 the delay and reasons for delay

4.In his affirmation filed in support of his application, the Applicant attributed the delay in appealing by asserting that he only received the Order on 14 July 2022. He did not produce the envelop showing the post mark to support his assertion. He also explained that he did not know English and need to seek assistance from a friend to help him to understand the Form Call-1.

5.The court staff are under very strict instructions to ensure that court orders are posted on the date the orders are issued. The delivery service of Hong Kong Post is usually very reliable. The Applicant’s assertion that he only received the Order dated 28 June 2022 sixteen days later is just a bare assertion which is not capable of belief. The Court did not consider his assertion a credible explanation for the delay. Nevertheless, in view of the short delay, this Court was prepared to condone the delay if he can demonstrate good prospect of success in his intended appeal.

Grounds of appeal and prospect of success of the intended appeal

6.In paragraph 7 of his supporting affirmation, the Applicant complained about procedural unfairness by accusing this Court of failing to exercise caution and diligence in handling his case as he was a self-represented litigant. This is just a bare assertion with no particulars. This Court had considered his lack of legal representation in paragraphs 18 to 21 of the Form Call-1. In short, he is not entitled to legal representation at any time he desired and this Court was satisfied that he suffered no prejudice as a result of such lack of legal assistance.

7.Paragraph 8 of his supporting affirmation is blank.

8.In paragraphs 9 and 14 of his supporting affirmation, he asserted his language disability and lack of language assistance and that the judgment of Deputy High Court Judge Bruno Chan had not been read back to him in his first language. He argued that the lack of such arrangement meant that this Court did not even give weight to his language disability. His complaint about lack of legal and language assistance was dealt with in paragraphs 18 to 26 of the Form Call-1 and will not be repeated. It should also be noted that Deputy High Court Judge Bruno Chan had not given any judgment or made any decision regarding the Applicant. Neither has the Applicant identified the judgment he was referring to or relying on. In short, there is no substance in this ground.

9.In paragraphs 10 to 13, he challenged the Court to provide documentary evidence to show that the Order had been delivered to him successfully. The Court is well satisfied from its records, the Applicant’s acknowledgement of receipt of the Order and the ordinary course of event that the Order has been received by the Applicant within two days of posting and his allegation of late receipt after 14 days is incredible. In any event, this Court was prepared to condone his delay, if he could show good prospect of success. But in the ultimate analysis, he has not demonstrated any prospect of success. The other paragraphs in his supporting affirmation are not related to the grounds of appeal.

Prejudice to the respondent

10.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. It 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. It may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

11.In summary, there is no valid explanation for the delay, though of an insubstantial length of time of six days. That is not fatal to an application for extension of time. But the absence of a good ground of appeal with prospect of success is. It is an abuse of process to challenge a decision without proper and good ground of appeal and which is bound to fail when it is already out of time. To allow such a challenge to proceed 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 appearing in person