Re Bariyah

HCAL 2918/2018

[2022] HKCFI 2824

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2918 OF 2018

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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 13 July 2022 (the “Summons”) for extension of time to appeal the order of this Court dated 28 June 2021 (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 31 July 2015 (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 July 2022 when the Summons was filed, twelve and half months had lapsed since the date of the Order. The application was made one year out of time. The delay is very substantial in the context of a fourteen-day period of appeal. In her supporting affirmation, the Applicant gave an address in Fuk Wah Street which is different from that given by her in her Form 86, namely an address in Apliu Street to which address the Order was sent. She said she need to extend her stay in Hong Kong but gave no explanation for her delay in taking out the application. Possibly, she did not receive the Order because she had moved without updating her new address with the Court. To assist her in presenting a proper case for extension of time, this Court gave her directions by letter dated 1 August 2022 to file a statement within 14 days of the letter setting out, inter alia, the date and circumstances when the Order was brought to her attention, the particulars of her changes in residential address since 28 June 2021, which was the date when the Order was sent to her address in Apliu street, and the grounds of her intended appeal. The Order was sent to her address as stated in her Summons. As at the date of this decision, she has not responded.

4.In the absence of any response from her, the only irresistible inference from the circumstances is that the Applicant did not receive the Order because she had moved without updating her 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 his neglect. Hence, there is no valid explanation for the substantial delay.

Prospect of success of the intended appeal

5.Despite the Court’s specific request for the grounds of her intended appeal, the Applicant did not respond. The inference is that she has no arguable grounds of appeal. Without even knowing what her 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 her 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 her 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 her 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