Re Asan Bun

HCAL 549/2019

[2022] HKCFI 2832

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 549 OF 2019

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Before:  Deputy High Court Judge To in Chambers

Date of Decision:  22 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 second application by summons filed on 21 July 2022 (the “Summons”) for extension of time to appeal the order of this Court dated 29 April 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 4 February 2019 (the “Decision”). He had previously applied and was granted extension of time to 24 June 2022 to file appeal with intended grounds of appeal. On that occasion, he was three days late.

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 21 July 2022 when the Summons was filed, 27 days had lapsed since the extended time for filing the appeal. This time, his application is 13 days out of time. In his supporting affirmation, the Applicant explained that he “did not get the letter in time”. His explanation did not contain sufficient information to enable the Court to determine the extent of the delay since he received the Court’s letter, ie the order granting him extension of time (the “extension order”). To assist him in presenting a proper case for extension of time, this Court gave them directions by letter dated 23 August 2022 to file a statement within 10 days of the letter stating the date and the circumstances under which the extension order was received by him. He was also asked to furnish the grounds of his intended appeal. As at the date of this decision, the Applicant has not responded. He is deemed to have waived his right to provide the information.

4.The Applicant acknowledged that he had received the extension order, but did not tell when he received it. He was requested to inform the Court when he received it. The information would enable the Court to assess his delay, the reasonableness of his explanation for the delay and whether to grant him extension of time. The information required is a very simple piece of information which should readily available as the event occurred according to the Applicant’s account just a few weeks ago. He declined providing the information. The Court is left with no information on which to consider whether his delay ought to be excused and whether to grant him the extension. He had asserted a similar explanation of late delivery of the Court’s order before. The court staff are under very strict instructions to ensure that court orders are issued on the date as stated in the orders. The delivery service of Hong Kong post is usually very reliable. His explanation which is founded on one coincidence adding onto another is not very credible. By reason of the circumstances and the Applicant’s lack of response to the Court’s directions, the Court is not satisfied that the explanation he gave is credible or reasonable.

Prospect of success of the intended appeal

5.Directions had been given to him to furnish the grounds of his intended appeal on 27 July 2022 and again 23 August 2022. 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[2]. 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 his application is allowed, is obvious. It is a clear abuse of legal process to challenge the court’s 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 failed to do so. 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. 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 his application may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

9.For the above reasons, the application for extension of time to appeal is refused.

The applicant is not represented