Re Do Ngoc Thanh

HCAL 73/2022

[2022] HKCFI 2742

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 73 OF 2022

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Before:  Deputy High Court Judge To in Chambers

Date of Decision:  9 September 2022

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D E C I S I O N

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INTRODUCTION

1.This is the Applicants’ application by summons filed on 13 June 2022 (the “Summons”) for extension of time to appeal the order of this Court dated 12 May 2022 (the “Order”) refusing him leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / non-Refoulement Claims Petition Office (the “Board”) dated 10 January 2022 (the “Decision”).

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. 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 delay and reasons for the delay

3.By 13 June 2022 when the Summons was filed, 32 days had lapsed since the date of the Order. The application is 18 days out of time. In his supporting affirmation, the Applicant claimed that he does not know English or Chinese; he did not know how to update his address with the court; and he needed to seek help from his friends to file his appeal. The Court noted that the address he gave in his Summons is different from the address to which the Order was sent. Possibly, he did not receive the Order because he had moved without updating his new address with the Court. To assist him in presenting a proper case for extension of time, this Court gave them directions by letter dated 6 July 2022 to file a statement within 14 days of the letter setting the date and circumstances when the Order was brought to his attention and his changes in address since 29 January 2022. The Order was sent to his address as he informed the Immigration Department on his routine reporting on that day, which the Court obtained from the Immigration Department when it was unable to reach the Applicant in April 2022 at the address he provided. He was also asked to furnish the grounds of their intended appeal. He did not respond.

4.In his supporting affirmation, the Applicant admitted he had moved without updating the Court of his change in address. He put the blame on his ignorance about the need to update the Court about his address and explained the delay because of his language disability. Neither of these could be a valid reason. It is just a matter of common sense that if he did not update the Court with his change in address, there is no way the Court could reach him for the purpose of processing his application. In Re Karamjit Singh[2] and Re Hasmi Rizwan Imran[3], the Court of Appeal held that 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 success of the intended appeal

5.Despite the Court’s specific request for the grounds of his intended appeal, the Applicant did not respond. The inference is that he has no arguable grounds of appeal. Without even knowing what his grounds of appeal are, it is very difficult to assess the prospect of success of the intended appeal.

6.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a non-refoulement claim 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 a judicial review of that decision, the court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[4]. Thus, in the absence of any specific grounds challenging the Court’s decision in refusing leave to apply for judicial review and in an application to appeal that decision out of time, the best the court can do is to re-assess the decision focusing on the above vitiating elements.

7.I have rigorously re-examined the Form Call-1, the Decision, the papers and the evidence with anxious scrutiny. I am 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 observed a very high standard of fairness. I am satisfied that the Board’s Decision has not been so vitiated. On the material now available, the Applicant’s intended appeal has no prospect of success at all.

Prejudice to the respondent

8.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. His application 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. This application does not raise any questions of general public importance. It may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

CONCLUSION

9.The is no valid explanation for the substantial delay and no arguable ground of appeal. It is a clear abuse of legal process to challenge a decision without proper and good grounds of appeal and which is bound to fail. Despite having been given a last opportunity to furnish his grounds of appeal, the Applicant has failed to do so. The only reasonable inference is that he has no explanation for the delay and no arguable ground of appeal. His application is an abuse of legal process. To allow such a challenge to proceed when it is already out of time 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 is not represented