Jaan Sheikh Babu v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2603/2018

[2023] HKCFI 369

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2603 OF 2018

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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 5 January 2023 (the “Summons”) for extension of time to appeal the order of this Court dated 8 August 2022 (the “Order”) refusing his application for 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 13 November 2018.

THE LAW

2.In Jagg Singh v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office[1] and Director of Immigration and William Lam[2], the Court of Appeal held that what may constitute a good reason for extending time cannot be defined. In most cases, this would be a “multi-faceted question” the answer to which would depend on the circumstances of each case. The following factors, which are not exhaustive, are likely to be of significance in determining whether to grant extension of time:

(1)  length of delay;

(2)  reasons for the delay;

(3)  prospect of success in the intended appeal; and

(4)  prejudice to the respondent if extension was granted.

LENGTH OF DELAY AND REASONS FOR THE DELAY

3.By 5 January 2023 when the Summons was filed, four months and twenty-eight days had lapsed since the date of the Order. The application is four months and fourteen days out of time, which is very substantial in the context of a fourteen-day appeal period.

4.The Court noted that the Order and Form CALL-1 were sent to the Applicant’s last known address in Temple Street, whereas his address as stated in the Summons is in Tung Choi Street. If in fact he had not received the Order, it was most likely because he had not informed the Court of his change of address. In Karamjit Singh[3], the Court of Appeal said:

“As we have said before, it is common sense that if a litigant or a claimant does not notify the authority (be it the Immigration Department, the board, or the court) in his change of address, there would be delay in communication. If he does not do so, he should arrange for timely transmission of mail from his old address to his new address. It is the duty of a litigant/claimant to give the authority an address to which correspondence or notice can come to his attention in timely manner. The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant/claimant, see: Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims Appeal Board [2018] HKCA 82; and Re Saqlain Muhammad [2018] HKCA 346. That said, however, we note that the delay in this case was very short, being only some 6 days. In such situations, the board should generally have regard to the merits of the case as disclosed by the available material, rather than simply dismissing the application for lateness.”

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. Instead of coming to the conclusion that he has no explanation for the very substantial delay, out of abundance of caution and with a view to explore the existence of a possible explanation for the delay, this Court gave him specific directions to file a statement stating (a) the date and circumstances under which the Order in respect of which leave to appeal is sought was received or brought to his notice; and (b) his grounds of the proposed appeal.

5.In his statement lodged with the Court on 19 January 2023, he claimed he was not late in coming to court. He said:

“… 10^th January 2023, the High Court ask me why I apply too late. I was not late I came to the court on time but my Immigration Form 8 was so old, Immigration did not change. The High Court officer did not accept my application. So I failed to apply. After the Immigration change, I applied. For your watching I will give two picture of my two paper. Please grant my leave.”

His statement suggests that he was late in attending court and was refused by a court staff from filing some papers and that he tried to explain his late appearance on the basis of some problems with his Immigration Form 8 for which he was not to blame. His statement might give a reader an impression that he misunderstood what he was asked to inform the Court, presumably because of his language disability.

6.However, when his statement is read against the background, his Summons and the Court’s directions, it is amply clear that he was deliberately not answering the Court’s questions or complying with the Court’s directions. In his Summons, he said unequivocally that he had not received the decision of the Court on time, which in the context referred to the Order and Form CALL-1. Impliedly, he did receive the Order or information about the Order but not within time to allow him to file an appeal. That has nothing to do with the Form 8 which is a recognizance signed by a person who is liable to detention under the Immigration Ordinance so that he may be released in lieu of detention. There is nothing to suggest he was required to attend court on a specific date and time for a specific purpose and he was late. It was also not his case that he was detained which prevented him from receiving the Order or attending court. The directions given to him are very specific, ie to provide the date when and the circumstances under which the Order was received by him or brought to his notice. His statement does not make sense, let alone does not answer the Court’s questions. Thus, despite specific directions having been given requiring him to provide particulars as to date and circumstances, he just gave some wholly irrelevant information in purported compliance with the directions. The irresistible inference is that he was deliberately avoiding the Court’s questions. In the circumstances, the Court could only come to the conclusion that he has no reasonable explanation for the very substantial delay of almost four and half months.

PROSPECT OF SUCCESS OF THE INTENDED APPEAL

7.Again, despite specific directions requiring him to state the grounds of his intended appeal, he did not respond. Thus, this Court could only consider his application on the basis of what he said in his supporting affirmation, ie he does not agree with the Court’s judgment, namely the Form CALL-1. This ground is in effect a challenge of the Board’s finding of fact, which is not permissible: see Nupur Mst v Director of Immigration[4]. In fact, he had also not put forward any grounds of his intended application for judicial review. His leave application was therefore considered by this Court undergoing a rigorous re-examination of the Board’s Decision with anxious scrutiny for errors of law, procedural irregularity and irrationality in the Decision. For the same reasons as explained in paragraphs 17 and 18 of the Form CALL-1, this Court could not find any. By his intended appeal, the Applicant is in effect seeking to challenge this Court’s finding that the Board’s Decision has not been tainted by any of the above vitiating factors which is the sole ground for which this Court may review the Decision of the Board; but he has not provided any basis for challenging this Court’s decision. Thus, his intended appeal has no prospect of success.

PREJUDICE TO THE RESPONDENT

8.The prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed is obvious. The delay is by itself an abuse of the process of the court and the non-refoulement protection arrangement. To allow the challenge which has no prospect of success to proceed 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. Allowing the application to proceed may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

CONCLUSION

9.The Applicant has no valid explanation for the very substantial delay. His intended appeal has no prospect of success. To allow such an un-meritorious challenge to proceed would be prejudicial to the intended respondent and the administration. Accordingly, his application for extension of time to appeal is refused.

The Applicant is not represented