Re Shah Amir Hussain

HCAL 1026/2019

[2022] HKCFI 2826

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1026 OF 2019

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Before:  Deputy High Court Judge To in Chambers

Date of Decision:  30 September 22022

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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 3 August 2022 (the “Summons”) for extension of time to appeal the order of this Court dated 30 June 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 April 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 3 August 2022 when the Summons was filed, 34 days had lapsed since the date of the Order. The application is 20 days out of time. The delay is substantial in the context of a fourteen-day period of appeal. In his supporting affirmation, the Applicant gave an address in Fuk Wa Street which is different from the address given by him in his letter dated 7 May 2019 informing the court of his updated address in Lai Chi Kok Road. The Order was sent to his address in Fuk Wa Street. In his supporting affirmation he claimed that he never received the Order and that he was only informed by the Immigration Department that his application had been refused by the Court. In paragraph 6 of his affirmation, he asserted that he does “stay at the same address which [he] had updated to the court by post on 7^th May 2019”. He asked the Court to provide documentary evidence to show that the Order had been delivered to him successfully.

4.His affirmation betrayed him. He said in paragraph 6 of his affirmation that he stays at the same address as stated in his letter dated 7 May 2019, which is an address in Lai Chi Kok Road. However, in the first line of his affirmation and his Summons, he averred that he is the Applicant living in Fuk Wa Street. Thus, what he said in paragraph 6 of his affirmation could not be true. Possibly, he did not receive the Order because he had moved out of the Lai Chi Kok Road address to the Fuk Wa Street address without updating his new address with the Court. To assist him in presenting a proper case for extension of time, this Court gave him directions by letter dated 24 August 2022 to file a statement within 10 days of the letter setting out the date when he moved out of the Lai Chi Kok Road address; the date of change of address thereafter; the date of his reporting the change to the Immigration Department; and the date of his informing the Court of the change.

5.In reply, he said he “came out from Lai Chi Kok in 2019” but does not remember the date because he is illiterate. That is ambiguous. It was on 7 May 2019 that he informed the Court of his address in Lai Chi Kok Road. It is not clear whether in his reply he meant he moved out from the Lai Chi Kok Road address or he was released from some detention facilities in Lai Chi Kok District. Be that as it may, it is unimportant because he was not providing the information requested of him. He also mentioned about his receiving food vouchers and rental payment from International Social Services, which information was also not required of him. He was asked about his move from the Lai Chi Kok Road address. He avoided providing the information which would clarify his case. In the absence of any meaningful response from him, the only irresistible inference which may be drawn from the circumstances is that he did not receive the Order because he had moved without updating his new address with the Court. 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 the neglect.

6.The Applicant said he was not aware of the 14-day time limit to appeal. It is well settled law that ignorance of the law and procedure is no excuse. Furthermore, since the operative reason for the delay is his failure to update the court of his address, his lack of knowledge of procedure is irrelevant. There is no valid explanation for the substantial delay.

Prospect of success of the intended appeal

7.In the rest of his affirmation, he complained about procedural unfairness in that the court did not exercise caution and diligence in handling his case as a self-represented litigant; that the Court failed to acknowledge his language incapability; that he was not provided with legal and language assistance; that he did not understand the judgment; and that the decision was made without any hearing. None of these could be valid grounds for applying for judicial review. None of these grounds had been raised by him in his application for leave to apply for judicial review (ie Form 86). In fact, it is well settled legal principle that a non-refoulement claimant does not have absolute right to free legal representation at all stages of the proceedings: see Re Zafar Muazam[4], Re Zunariyah[5], Re Zahid Abbas[6], Re Tariq Farhan[7], and Re Lopchan Subash[8]. He was legally represented up to the conclusion of the screening interview, though not at the appeal before the Board. In Re Karamjit Singh, the Court of Appeal held that the high standard of fairness does not require provision of interpretation service at any time an applicant desired or required. He had the services of an interpreter in preparing his claim, in his screening interview and in the appeal before the Board. Nothing amiss arose from the non-availability of legal representation or language assistance at any stage of the non-refoulement proceedings.

8.As was explained in 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. 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[9]. I had rigorously examined the Decision, the papers and all the evidence with anxious scrutiny and was satisfied that the Decision was not tainted by errors of law, procedural unfairness or irrationality before refusing the Applicant’s leave application.

9.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

10.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

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

The applicant is not represented