Rai Sukha Dev v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 1021/2019

[2023] HKCFI 436

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1021 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 29 August 2022 (the “Summons”) for extension of time to appeal the order of this Court dated 28 June 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 29 March 2019.

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 the judge’s order to the Court of Appeal within 14 days after such order was made. By the time when the Summons was filed, the application is one month and seventeen days out of time, which is not insubstantial in the context of a fourteen-day appeal period.

THE LAW

3.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

4.The Applicant offered no explanation for the delay. In his supporting affirmation, he said he is illiterate, unrepresented, did not know the time limit for appealing and that he had never received any correspondence from the Court regarding the dismissal of his Leave Application. To assist him to make a proper application for leave, this Court gave him specific directions to file a statement stating the date and circumstances when he was first informed that his Leave Application had been refused.

5.In respond, he replied that he did not remember when he received the judgment from the High Court, by which he must mean the Order and Form CALL-1, but it was a few days before he made the present application. At the highest, he only informed the Court that he received the Order late, but not the circumstances under which he received it to account for the late receipt or explain the delay. The delivery service of the Hong Kong Post is usually very reliable. His answer contradicts his supporting affirmation in which he said he had never received the judgment from the High Court. Apart from being incomplete, inconsistent and incredible, his answer failed to explain the reason for the delay.

6.Illiteracy and lack of legal assistance generally is not a valid explanation for the delay. It cannot prevent a layman from filing his notice of appeal setting out what in his mind are valid grounds of appeal and leaving the question of merit to the court to decide in due course.

PROSPECT OF SUCCESS OF THE INTENDED APPEAL

7.Insofar as the Applicant also seeks to rely on his illiteracy and lack of legal representation at as a ground of appeal, 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[3], Re Zunariyah[4], Re Zahid Abbas[5], Re Tariq Farhan[6], and Re Lopchan Subash[7]. The Applicant was legally represented up to the conclusion of the screening interview, though not at the appeal before the Board. In Re Karamjit Singh[8], 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.In his Summons, the Applicant asked for leave to advance a new sole ground of appeal, but he did not give particulars of this new ground of his intended appeal. In his supporting affirmation, he claimed that the decision by which the Order was made was reached unfairly without allowing him an opportunity to clarify his case and situation in his home country.

9.As already mentioned in paragraph 17 of the Form CALL-1, the Applicant did not put forward any grounds of judicial review. He was invited by this Court’s letter dated 12 April 2022 to file any submission which he would like to make in support of his application, he responded without making any submission. It lies ill in his mouth to complain that the decision was reached unfairly without allowing him an opportunity to clarify his case. Furthermore, as explained in paragraph 16 of the Form CALL-1, the function of the Court in a judicial review is not to hear appeal against the Board’s finding of fact, it only reviews the legality of the Board’s decision in terms of errors of law, procedural unfairness and irrationality in the Decision: see Nupur Mst v Director of Immigration[9]. As explained in paragraphs 17 and 18 of the Form CALL-1, in the absence of any proper ground of application, the Applicant’s Leave Application had to be considered by this Court undergoing a rigorous examination of the Board’s Decision with anxious scrutiny for errors of law, procedural irregularity and irrationality in the Decision. For reasons as explained in paragraphs 19 and 20 of the Form CALL-1, this Court could not find any. Hence, this Court refused his Leave Application.

10.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

11.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

12.The Applicant has no valid explanation for the not insubstantial 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