Re Abul Bashar Akando

HCAL 557/2019

[2022] HKCFI 2745

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 557 OF 2019

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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 Applicant’s application by summons filed on 19 July 2022 for extension of time to appeal the order of this Court dated 18 May 2022 (the “Order”) refusing to grant him leave to apply for judicial review of the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (the “Board”).

The Law

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 explanations for the delay

3.By 19 July 2022, 62 days lapsed since the Order was made. The Applicant is 48 days out of time, which is substantial in the context of a 14-day period of appeal. To assist him in presenting a proper case for extension of time, this Court gave him directions by letter requiring him to file an affirmation or statement within 14 days of the directions stating the following:

(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 Torture Claims Appeal Board/Non-Refoulement Claims Petition Office; and

(b)  the grounds of his intended appeal.

He was also advised that the application for extension of time will be determined on paper seven days thereafter, regardless whether the above directions have been complied with.

4.On 11 August 2022, the Applicant filed his statement asserting that he had checked his post box everyday but he had never received the Order or the Form Call-1. He said he was only informed by an immigration officer on a date which he forgot that his leave application had been refused by the High Court. Then on the next two or three days he applied for extension of time to file appeal. He did not advance any grounds of the intended appeal.

5.The Applicant’s explanation is just a bare assertion. The Court understands that a negative averment such as non-receipt is difficult to prove. However, the court staff are under very strict instructions to post the orders of the court on the date of issue of the order. The Order and Form Call-1 were sent to the Applicant at his address as stated in his Summons which is his current address. The mail has not been returned through the course of mail. The delivery service of Hong Kong Post is usually very reliable. There is nothing to suggest the Applicant had not received the mail. This Court is not satisfied that his explanation is true.

Prospect of success of the intended appeal

6.The Applicant did not advance any ground of appeal in his summons or affirmation. Despite the Court’s specific request for his grounds of appeal, he did not respond. The inference is that he has no arguable ground of appeal. Without even knowing what his grounds of appeal are, it is impossible to assess the prospect of success of the intended appeal.

7.The role 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 a judicial review, 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[2]. In the absence of any specific grounds challenging the Court’s decision in refusing leave to apply for judicial review, in an application to appeal that decision out of time, the court can only focus on the above vitiating elements in the decision.

8.I have rigorously re-examined the Form Call-1, the Decision, the papers and the evidence with anxious scrutiny and 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 observed a very high standard of fairness. I am satisfied that the Board’s decision has not been so vitiated. Without even knowing his grounds of appeal, it is impossible to assess the prospect of success of the intended appeal. On the material now available, the Applicant’s intended appeal has no prospect of success at all.

Prejudice to the respondent

9.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

10.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