Anudike Chibuzor Charles v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2923/2018

[2023] HKCFI 396

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2923 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 21 November 2022 (the “Summons”) for extension of time to appeal the order of this Court dated 16 September 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 6 September 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 almost two months 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, REASONS FOR THE DELAY AND PROSPECT OF SUCCESS

4.The Applicant’s explanation for the delay in appealing is that he had not received the Order and Form CALL-1 in time to allow him to appeal within time. He gave no particulars when he actually received them. As such, the Court is unable to assess the credibility and reasonableness of his explanation. He also did not furnish any grounds of his intended appeal, without which this Court would be unable to assess the prospect of success of his intended appeal.

5.To assist him to make a proper application for extension of time, this Court gave him specific directions to file a statement within 14 days stating the date and circumstances when the Order was received by him or brought to his attention and the grounds of his intended appeal. As at the date of this decision, two months have lapsed since the date of the directions, this Court has not received the grounds of his intended appeal. He has been given enough indulgence from this Court. In the circumstances, this Court could only come to the conclusion that he has no reasonable explanation for the substantial delay and he has failed to demonstrating any prospect of success in his intended appeal.

PREJUDICE TO THE RESPONDENT

6.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

7.The Applicant has no valid explanation for a very substantial delay. Despite directions having been given to him to file proper explanation for the delay and the grounds of his intended appeal, he did not respond. 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