Re Awaiz Khan

HCAL 526/2019

[2023] HKCFI 144

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 526 OF 2019

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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 9 August 2022 (the “Summons”) for extension of time to appeal the order of this Court dated 12 May 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 26 September 2018 (the “Decision”) refusing his application for late filing of his Notice of Appeal (“NOA”) against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 17 January 2018 (the “Notice”). The Applicant is triple late: late in filing his NOA; in filing his leave application; and in appealing this Court’s Order refusing his leave application.

2.According to Order 53, rule 3(4) of the Rules of the High Court, by 9 August 2022 when the Summons was filed, this application was two months and fourteen days out of time. In the Summons, the Applicant’s explanation for the delay was that he did not have enough money to instruct a lawyer. In his supporting affirmation, he alleged that he withdrew his appeal from the Board because at the time his problem in his home country had been solved with the help of villagers and a police inspector. However, after the inspector was transferred to another city, his enemies made the same demand against him as before. His brother told him to stay in Hong Kong until the problem was fully solved. He said he will provide the grounds of appeal at a later date.  As at the date of this Form CALL-1, he has not provided the grounds of appeal as he had indicated. But in essence, his grounds of appeal have been fully set out in his supporting affirmation, ie it is still unsafe for him to return to Pakistan because his problem has not yet been solved. Having considered the Summons, the supporting affirmation, the Form CALL-1, the Notice, the Decision and his NOA, this Court considered it appropriate to determine his application on paper.

THE BACKGROUND

3.The background leading to this application is summarized in paragraphs 3 to 6 and 17 to 21 of the Form CALL-1. Very briefly, the Applicant, a national of Pakistan, entered Hong Kong illegally on 13 July 2015. He applied for non-refoulement protection. His application was rejected by the Director’s Notice dated 17 January 2018. He filed an NOA with the Secretariat of the Board on 29 March 2018. Pursuant to section 37ZS of the Immigration Ordinance, an appeal must be filed within fourteen days after the Notice was served on the applicant. The Applicant was late by almost two months. Section 37ZT mandates an intending appellant to state the reasons for his late application. The reason given by the Applicant was that he was told by his mother to return to Pakistan because the situation there had improved. Impliedly for that reason, he did not lodge the appeal (not that he withdrew the appeal as he alleged in his supporting affirmation). But on 24 March 2018, her mother told him that his enemies had attacked his home again and would kill him if he returned. In essence, this is the same reason he gave in his supporting affirmation in the present application. Due to the lack of particulars in the reason, the Board refused his late filing of the NOA in its Decision.

4.On 25 February 2019, the Applicant sought leave from this Court to apply for judicial review of the Board’s Decision. Pursuant to Order 53, rule 4(1) of the Rules of the High Court, his application was two months out of time. He gave no explanation for his late application. Having considered the legal principles applicable to late leave application as set out by the Court of Appeal in AW and Director of Immigration & Anor[1], this Court issued the Order refusing his application. The reason was because the delay was substantial and unexplained and there was no merit in the application. Now, two and half months after the time for appeal had expired, the Applicant sought leave to appeal the Order.

LEGAL PRINCIPLES APPLICABLE TO APPLICATION FOR EXTENSION OF TIME TO APPEAL

5.In Jagg Singh and Torture Claims Appeal Board / Non-refoulement Claims Petition Office[2], 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 extension of time was granted.

LENGTH OF DELAY AND REASONS FOR THE DELAY

6.The application is two and half months late which is substantial in the context of a 14-day period of appeal. The reason for the delay as asserted by the Applicant in his Summons is that he had no idea how to appeal, had no access to legal advice, and had no money to instruct a lawyer. The courts in Hong Kong are easily accessible to unrepresented litigants. It is apparent that the Applicant can communicate in English or, somehow, had access to language assistance. He is able to present his case and grounds of application. His language disability and lack of legal representation could not prevent his access to court. These reasons are usually not considered as reasonable explanations.

PROSPECT OF SUCCESS OF THE INTENDED APPEAL

7.In essence, his ground of appeal is that it is still unsafe for him to return to Pakistan. This is also the ground he relied on in his NOA he attempted to file with the Board and in his leave application seeking judicial review of the Board’s Decision refusing his late filing of the NOA. As explained in paragraph 6 of the Form CALL-1, the Decision sought to be judicially reviewed revolved around a very narrow compass, ie the propriety of the Board’s refusal of the late filing of the NOA. The Applicant’s case for non-refoulement protection and the Director’s Notice refusing his claim for protection were not the subject matter of that Decision but part of the background leading to his appeal to the Board and its Decision. This ground may be a ground for attacking the Director’s Notice in refusing him non-refoulement protection. However, for reasons as explained in the Decision, it was not accepted by the Board as an explanation for the delay in filing the NOA due to lack of particulars: see paragraphs 17 to 21 of the Form CALL-1. This is what his leave application should be focused on.

8.The Applicant was late in making his leave application. The legal principles and issues raised by his late leave application are set out in paragraphs 23 to 26 of the Form CALL-1. In considering whether to grant extension of time to apply for leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the explanation for the delay; (3) the merits of the intended application; (4) the prejudice to the applicant vis-à-vis that to respondent if an extension of time is refused or granted; and (5) whether the application raises any question of general public importance: see AW and Director of Immigration & Anor[3]. This Court’s finding in respect of these five issues are set out in paragraphs 27 to 37 of the Form CALL-1. These issues were all resolved against the Applicant, in particular that there were no merits in the intended judicial review. It is obvious that his ground that it is still unsafe for him to return to Pakistan has no bearing whatever to these five issues. It cannot constitute an arguable ground for judicial review of the Board’s Decision. For the same reason, it cannot constitute a ground of appeal against this Court’s Order refusing his application for leave to apply for judicial review of that Decision.

9.This Court was conscious of the disability of the Applicant in being unrepresented. As noted in paragraphs 31 to 34 of the Form CALL-1, out of abundance of caution, this Court called for the NOA from the Board to explore the existence of any arguable grounds of appeal against the Director’s Notice refusing him non-refoulement protection. If there are, this Court would order amendment of his Summons to enable this underlying issue to be reviewed. However, after having rigorously examined the Director’s Notice, the Board’s Decision, the NOA, the papers and the evidence with anxious scrutiny, this Court was satisfied that there were no errors of law, procedural unfairness and irrationality in the Director’s Notice: see paragraph 34 of the Form CALL-1. It was only then that this Court came to the conclusion that there was no prospect in the intended judicial review and hense refused his leave application.

PREJUDICE TO THE RESPONDENT

10.The prejudice to the proposed respondent and to public administration is obvious, if his application is allowed. 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. 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