Re Ali Liaqat

HCAL 2852/2018

[2022] HKCFI 2683

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2852 OF 2018

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Before: Deputy High Court Judge To in Chambers

Date of Decision: 2 September 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 13 July 2022 (the “Summons”) for extension of time to appeal the order of this Court dated 31 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 30 March 2017 (the “Decision”).

The background

2.On 12 December 2018, the Applicant applied by Form 86 for leave to apply for judicial review of the Decision of the Board (the “leave application”). That application was already 17 months out of time. On 31 March 2022, this Court issued the Order and Form Call-1 refusing to grant him leave to file the application out of time and dismissing his application for leave to apply for judicial review. The Applicant now seeks leave to appeal the above Order also out of time.

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) explanation for the delay;

(3) prospect of the intended appeal;

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

The length of delay and reasons for the delay

4.By 13 July 2022 when the Summons was filed, almost three and half months had lapsed since the date of the Order. The application is almost three months out of time. The delay is grossly inordinate in the context of a fourteen-day appeal period. The Applicant did not state his grounds of appeal or explain the reason for his late application in the Summons. In his Summons, he alleged that he “did not get chance”. In his supporting affirmation, he said, “I did not get the High Court decision”.

5.The explanation given in the affirmation are mere assertions which are not supported by any corroborating or independent evidence. It does not explain why the Applicant did not receive the Order. An important factor which underlies his assertions is whether the address in Mong Kok which he provided in his Form 86 and supporting affirmation and to which the Order was sent on 31 March 2022 is effective. The Court noted that the address he gave in his Summons is a different address in Yuen Long. Obviously, he did not receive the Order because he did not update the Court with his change in address. To assist him in presenting a proper case, this Court gave him directions on 1 August 2022 to file a statement stating:

(a) the date and circumstances under which he first received the Order or information about the outcome of his leave application;

(b) all his residential addresses since 31 March 2022;

(c) the date of change of address thereafter, exhibiting supporting documentary evidence, if any;

(d) the date of reporting the change to the Immigration Department;

(e) the date of reporting the change to the High Court; and

(f) grounds of the proposed appeal.

He was also advised that his application for extension of time will be determined on paper after 21 days from the date of the directions, regardless whether the above directions have been complied with.

6.On 8 August 2022, the Applicant delivered his two-page statement written in big font. On the first page, he set out his personal background and the fact that he had made a non-refoulement claim. In the second page, he alleged that he did not receive the Order but was informed by an immigration officer on his routine reporting on 11 July 2022 that his leave application was refused and that he came to the High Court to apply for extension of time. He only provided information about item (a). He withheld the other information required in the directions, particularly his residential address since 31 March 2022 and the grounds of his intended appeal. It was not a particularly onerous obligation to provide his residential address since 31 March 2022 which was only four months ago. The only reasonable inference from this failure and the change in address is that he had changed his address since the date he filed the leave application without informing the Court.

7.In Karamjit Singh[2], the Court of Appeal said:

“As we have said before, it is common sense that if a litigant or a claimant does not notify the authority (be it the Immigration Department, the board, or the court) in his change of address, there would be delay in communication. If he does not do so, he should arrange for timely transmission of mail from his old address to his new address. It is the duty of a litigant/claimant to give the authority an address to which correspondence or notice can come to his attention in timely manner. The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant/claimant, see: Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims Appeal Board [2018] HKCA 82; and Re Saqlain Muhammad [2018] HKCA 346. That said, however, we note that the delay in this case was very short, being only some 6 days. In such situations, the board should generally have regard to the merits of the case as disclosed by the available material, rather than simply dismissing the application for lateness.”

Thus, it is the Applicant’s duty to report his change of address to the Court. If he did not, he has to bear the consequence of his neglect. Hence, there is no valid explanation for the delay.

Prospect of the intended appeal

8.The Applicant’s sole ground of appeal or judicial review is that he had never received the Order. If his explanation is not accepted, non-receipt is not a ground for appeal or judicial review. He advanced no other valid grounds for appeal or judicial review.

9.The function 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 an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[3]; Re Md Shohel Sheak[4]; and Re Limbu Birkhaman[5]. Thus, the Court would focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

10.Having rigorously re-examined the Decision, the papers and the evidence with anxious scrutiny, the Court was 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; and correctly identified the issues. The Board observed a very high standard of fairness. It was on that basis that the Board found there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness, unreasonableness and irrationality. I could detect no error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision of the Board is utterly without fault.

11.For the above reasons, the Applicant has no arguable grounds for judicial review. His proposed judicial review has no realistic prospect of success, neither has his intended appeal against my decision refusing to grant him leave to apply for judicial review. For this reason alone, it would be futile to grant leave to appeal out of time.

Prejudice to the respondent

12.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 which are likely to have to be resolved by the courts in any event. Allowing the application may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

13.This is a particularly bad case of abuse of legal process. The Applicant’s non-refoulement claim had been finally determined by the Board in March 2017. Now, more than five years down in time, he is still engaging in review and appeal process involving twenty months of unexplained delay occasioned by him.

Conclusion

14.The Applicant has no arguable grounds of appeal or judicial review and has no valid explanation for the very substantial delay of almost three and half months. For these reasons alone, his application for leave to appeal out of time must be dismissed. It would be a futile exercise of the Court’s discretion to grant extension of time to enable an applicant to appeal or to apply for a judicial review which is bound to fail. To allow such an un-meritorious challenge to proceed would be gravely prejudicial to the intended respondent and the administration. It is a clear abuse of legal process. Accordingly, the application for extension of time to appeal is refused.

The applicant is not represented