Hussain Mushtaq v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2951/2018

[2023] HKCFI 522

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2951 OF 2018

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BETWEEN

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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 4 January 2023 (the “Summons”) for extension of time to appeal the order of this Court dated 19 August 2022 (the “Order”) refusing 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”) dated 13 December 2018.

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 four months and two days out of time, which is very substantial 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’s explanation for the late appeal as set out in his supporting affirmation is that he had never received the Order and Form CALL-1 and did not know his Leave Application had been refused until he was informed by an immigration officer towards the end of December 2022. If that is true, he could not have filed his appeal within time.

5.However, the Court noted that the Order and Form CALL-1 were sent to the Applicant’s last known address in Yin Chong Street, whereas his address as stated in his supporting affirmation is in Shanghai 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.

6.In fact, the Order sent to his address at Yin Chong Street was returned through the mail on 20 October 2022 with a remark that the addressee had moved. Enquiries with the Immigration Department revealed that the Applicant had reported an address at Ki Lung Street and not Shanghai Street as stated by the Applicant in his supporting affirmation.

7.Instead of coming to the conclusion that the Applicant has no reasonable 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 with supporting documentary evidence (if any such as tenancy agreement) stating, inter alia, all his corresponding addresses since 21 December 2018 when he made the Leave Application, the dates of his changes of address, and the dates of his informing the Court of the changes.

8.In response, the Applicant lodged a statement on 20 January 2023 stating that he lived in the same address between the time he made his Leave Application and “a few months ago” from the date of his statement. He did not identify the month when he moved into his present address. That date is critical to his explanation because the Order was sent to him about five months prior to 20 January 2023. He also failed to inform the Court when he informed the Court of his change of address. He was being evasive.

9.The return of the Order on 20 October 2022 suggests that the Order had been delivered to the address at Yin Chong Street and left unattended for two months until someone took over the premises and returned it through the normal course of mail. It is therefore more probable than not that when the Order was delivered to the address at Yin Chong Street, the Applicant had moved.

10.The only reasonable inference to be drawn from the Applicant’s evasive statement in the face of the clear directions from the Court and absence of documentary proof of the date when he changed his address, and most importantly the return of the Order on 20 October 2022 is that he had moved to his present address before the Order was sent to him by post on 19 August 2022. That was why he did not receive the Order. The Applicant was trying to mislead the Court by not telling the whole truth in his statement. He does not have any reasonable explanation for the very substantial delay in appealing.

GROUNDS OF APPEAL AND PROSPECT OF SUCCESS OF THE INTENDED APPEAL

11.The thrust of the Applicant’s grounds of appeal is lack of legal representation and language assistance which may have an impact on procedural unfairness and irrationality in the Decision. These grounds had not been advanced by him in his Leave Application. These grounds of appeal are more directed at the propriety of the Board’s Decision than at this Court’s decision refusing his Leave Application. Nevertheless, they will be considered in both respects.

12.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[4], Re Zunariyah[5], Re Zahid Abbas[6], Re Tariq Farhan[7], and Re Lopchan Subash[8]. The Applicant was legally represented up to the conclusion of the screening interview, though not at the appeal before the Board. All the benefit which legal representation could have afforded him were before the Board. Nothing went amiss because of lack of legal representation before the Board.

13.In Re Karamjit Singh[9], 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. The question is whether anything went amiss as a result of lack of interpretation service. To the Court’s knowledge, interpretation service is invariably provided in all stages of the non-refoulement proceedings up to the hearing of the appeal before the Board. It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English. In the circumstances, he has to live with or cope with his language disability. He cannot expect to have the luxury of any documents to be fully translated into his first language for his benefit as and when he requires. He has to find assistance himself from among his friends and his ethnic community. Indeed, the Applicant was able to file an adequately well written affirmation in English himself. There is no substance in this ground.

14.The Applicant had requested an oral hearing so that he “would be able to describe his points with the help of an interpreter”. His points had been clearly raised and understood by this Court. Having regard to the nature of the application, the legal principles involved, and the issues raised, this Court considered that his Leave Application could be justly determined without an oral hearing and hence determined his application on paper.

PREJUDICE TO THE RESPONDENT

15.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

16.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