Re Surati

HCAL 548/2019

[2022] HKCFI 2823

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 548 OF 2019

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Before:  Deputy High Court Judge To in Chambers

Date of Decision:  30 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 22 July 2022 (the “Summons”) for extension of time to appeal the order of this Court dated 23 March 2022 (the “Order”) refusing her 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 2019 (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 22 July 2022 when the Summons was filed, four months had lapsed since the date of the Order. The application is three and half months out of time. The delay is substantial in the context of a fourteen-day period of appeal. She did not give any explanation for the delay in her Summons or supporting affirmation. To assist her in presenting a proper case for extension of time, this Court gave her directions to file a statement explaining why it took her four months to file the notice of appeal.

4.The explanation given by her in reply is that a family member of her husband contracted “a virus” virus, which required her to stay in her home for a “few weeks” and after that she completely forgot to apply for warrant from the High Court (presumably meaning to make the present application). Even accepting her allegations on face value and assuming that the virus was one which required those in close contact with the person contracted to be isolated, that could not explain her inaction for the entire period of four months. She could have during the “few weeks” of voluntary isolation prepared for the application and lodged it immediately thereafter. Her claim to have completely forgotten to make the application is a confession of neglect. There is no valid explanation for the substantial delay.

Prospect of success of the intended appeal

5.In her Summons, she made the following complaints against the decision leading to the making of the Order, which the Court assumes to be the grounds of her intended appeal:

(1)  the Court erred in finding that there was no failure by the Board to adhere to a high standard of fairness;

(2)  the Court failed to make sufficient enquiry before finalizing the decision;

(3)  the Court erred in concluding that her grounds for applying for leave to apply for judicial review were broad and vague without advising her to give further elaboration; and

(4)  the Board did not take into consideration the risk of harm to the Applicant and found her account implausible and unreliable without considering the political threat to which she was subject.

6.Ground (1) is an attack on the Court’s dismissal of her first ground of application for judicial review in which she made a similar attack on the Decision of the Board. Basically, she complained about lack of legal representation before the Board. The Court gave full reasons for its decision in paragraphs 14 to 16 of the Form Call-1. As noted in the last sentence of paragraph 14, she was asked to give particulars of other unfairness, but was unable to give any. Thus, her complaint against the Decision of the Board had been fully canvassed by this Court. In respect of her present similar complaint against this Court, she also gave no particulars. Her ground is a bare assertion without substance.

7.Under Ground (2), the Applicant complained that this Court failed to make sufficient enquiry before making its decision. As was explained in paragraph 5 of the Form Call-1, 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. 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]. I had rigorously examined the Decision, the papers and all the evidence with anxious scrutiny and was satisfied that the Decision had not been tainted by errors of law, procedural unfairness or irrationality before refusing the Applicant’s leave application. The Court spent the majority of the time in the hearing going over the “Grounds for Petition / Appeal” annexed to her supporting affirmation with her with a view to explore the particulars of those grounds. She gave a confusing and incredible account as to the genesis of that document, including that it was prepared by an immigration officer based on information provided by her. In gist, she insisted that it was prepared on the basis of information provided by her. The essence of her grounds is that she wanted to stay in Hong Kong, she had to look after her sick mother-in-law and it is unsafe for her to return to Indonesia. As noted in paragraphs 14, 17 and 18 of the Form Call-1 which are related to three of her grounds of application, she was unable to give any particulars which reflected an absence of substance in her grounds. There is no substance in this ground of her intended appeal.

8.Her complaint under Ground (3) is that the Court erred in dismissing her grounds of application as broad and vague without advising her to give further elaboration. I repeat my remarks in the preceding paragraph that the majority of time of the hearing was spent in assisting her to elaborate her grounds of application. This Court had tried its best to assist the Applicant in prosecuting her application, but met with her failure to provide particulars.

9.Her Ground (4) is a complaint against the finding of fact by the Board. As explained in paragraph 7 above, this is a matter solely for the Board. As noted in paragraph 11 of the Form Call-1, the Board accepted most of her evidence, except as regards her fear of harm. I have rigorously examined 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. Insofar as this complaint is directed at the decision of this Court, I am unable to find any substance in this ground.

10.Her intended appeal has no prospect of success at all.

Prejudice to the respondent

11.The prejudice to the proposed respondent and to public administration if a belated challenge with no prospect of success is allowed to proceed is obvious. Her 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. To allow her application may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

12.The is no valid explanation for the substantial delay in appealing. The intended appeal has no prospect of success. To allow such a challenge to proceed when it is already out of time is a clear abuse of legal process and would create prejudice to the intended respondent and the administration. For all these reasons, the application for extension of time to appeal is refused.

The applicant is not represented