Mohammed Waseem v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2788/2018

[2023] HKCFI 237

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2788 OF 2018

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Before:  Deputy High Court Judge To in Chambers

Date of Decision:  2 February 2023

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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 11 November 2022 (the “Summons”) for extension of time to appeal the order of this Court dated 1 September 2022 (the “Order”) dismissing his application for leave to apply for judicial review (the “Leave Application”) of the decision (the “Decision”) of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”).

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 was made. By 11 November 2022 when the Summons was filed, it was one month and twenty-seven days out of time. 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 extension of time was granted.

LENGTH OF DELAY AND REASONS FOR THE DELAY

3.The delay of almost two months is very substantial in the context of a fourteen-day period for appeal. In his Summons, the Applicant complained that the Order refusing his Leave Application was made without an oral hearing and asked for extension of time, presumably to appeal the Order; but gave no explanation for the delay. In his supporting affirmation filed on the same day, he said he “need some more time that’s why I am late filling (sic)”. He just asked for extension of time but offered no explanation for the almost two months’ delay. He also said he will submit his written submission. Despite he already had almost two and half months’ time to finalise the grounds of his intended appeal and explanation, he never did. In fact, by the time of issue of this decision, he had not submitted his written submission as he had indicated. Altogether, more than four months have passed without proper explanation for the substantial delay. The inference is he has none.

PROSPECT OF SUCCESS OF THE INTENDED APPEAL

4.The Applicant’s only expressed complaint is that the Order was made without an oral hearing. Despite more than four months have lapsed and despite his avowed intention to file a proper submission, he had not furnished any other grounds of his intended appeal. His only complaint is lack of an oral hearing.

5.Such leave applications are usually determined on paper without an oral hearing. Given the nature of such leave application and the applicable legal principles, paper determination is the standard practice and oral hearing is the exception. Paper determination as such is far from saying that the applicant has not been heard. The Applicant had the right and opportunity to make an application for leave to apply for judicial review, which he did. He had the opportunity to file a Form 86 to pursue that leave application and present his case. He exercised his right and made use of that opportunity. He filed his supporting affirmation and freely voiced his grounds of application, complaints and facts he relied on. He repeated the essence of his case in his supporting affirmation and exhibited 118 pages of documents of his choice. As stated in paragraph 4 of the Form CALL-1, he did not request an oral hearing; and after having considered all the papers, the Court considered it appropriate that his leave application be determined on paper without an oral hearing. This Court had taken into account all that the Applicant had presented and submitted before the Court; and made its determination in accordance with the law and established legal principles. The absence of an oral hearing in the circumstances is far from saying that the Applicant had not been heard or did not have the right or the chance to be heard. There was no injustice or breach of any principle of natural justice. There is no substance in his expressed ground of complaint.

6.Despite his avowed intention that he will submit his written submission, for four months he has failed to do so. He has no other grounds of intended appeal. However, out of abundance of caution, this Court also re-examined the Decision and Form CALL-1 for errors of law, procedural unfairness and irrationality to ensure that nothing had gone amiss.

7.The Applicant had advanced a 118-page affirmation in his Leave Application. As noted in paragraph 24 of the Form CALL-1, he had not put forward any specific grounds of judicial review. He basically repeated his case before the Board. For good reasons, the Board found him incredible and rejected his evidence. It rejected the centerpiece of his case and alleged fear of harm: see paragraphs 14 to 22 of the Form CALL-1. The Applicant bears the burden of proving his case. These findings are necessarily fatal. These findings are finding of fact which is solely within the province of the Board which the court in a judicial review will not intervene, save for errors of law, procedural unfairness and irrationality. Having rigorously examined the Board’s Decision with anxious scrutiny, this Court was satisfied that there were no errors of law, procedural unfairness or irrationality in the Decision before refusing him leave to apply. Having now rigorously re-examined the Decision and Form CALL-1 with anxious scrutiny, this Court is satisfied that there are no such vitiating elements in the Board’s Decision or in this Court’s decision in the Form CALL-1. The Applicant has disclosed no arguable grounds of appeal. There is no prospect of success in the intended appeal.

PREJUDICE TO THE RESPONDENT

8.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

9.The length of delay is substantial and unexplained. The Applicant has advanced no arguable ground of appeal. There is no prospect of success in his intended appeal. Absence of prospect of success is usually determinative for it would be a futile exercise to grant leave to appeal a decision which is already out of time and which is bound to be dismissed. Furthermore, the prejudice to the intended respondent is real. For all these reasons, the Applicant’s application for extension of time to appeal is refused.

The Applicant is not represented