Ashwani Kumar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 813/2019

[2023] HKCFI 733

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 813 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 26 September 2022 (the “Summons”) for extension of time to appeal the order of Deputy High Court Judge P Li (“DHCJ P Li”) dated 2 December 2021 (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 8 March 2019.

THE LAW

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 nine months and ten days out of time, which is very substantial in the context of a fourteen-day appeal period.

3.In Jagg Singh v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office[1] and AW v 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.

Usually, prospect of success in the intended appeal is the determinant factor. If the delay is short and there are reasonable explanations for the delay, the Court would be more relaxed in respect of the other factors.

LENGTH OF DELAY AND REASONS FOR THE DELAY

4.The Applicant is currently detained in Castle Peak Bay Immigration Centre which is his address as stated in the Summons. The Court noted that he had given an address in Tuen Mun in his Form 86 in March 2019 when he made the leave application and it was to that address that the Order and Form CALL-1 were sent on 2 December 2021. In the intervening period the Court had not received any notice from the Applicant about his change of address. The Order and Form CALL-1 had not been returned through the mail. The first time the Court was informed about his address in Castle Peak Bay Immigration Centre was 5 September 2022 when he wrote to request for a copy of the decision relating to his leave application.

5.There is no information when the Applicant moved out of the Tuen Mun address. If he had moved before 2 December 2021 he could not have received the Order and Form CALL-1. But he only had himself to blame for not informing the Court of his change of address and be responsible for the consequences: see Karamjit Singh[3]. If he moved after that date he may have an explanation for the delay provided he could produce convincing proof to substantiate his explanation. The possibility that the Order and Form CALL-1 had been lost through the mail is rather slim because the delivery service of Hong Kong Post is usually very reliable and the Court staff are under very strict instruction to issue Court orders on the date as stated on the order and to the correct address known to the Court. There is no explanation from the Applicant for the non-receipt. For reason as explained below, there is no need to undergo such enquiry with the Applicant.

GROUNDS OF APPEAL AND PROSPECT OF SUCCESS OF THE INTENDED APPEAL

6.The Applicant’s ground of appeal as stated in his Summons which he repeated in his supporting affirmation is that he did not want to go back to his home country because his life is in real risk there. The essence of his appeal is that he disagreed with the Board’s finding of fact that it is safe for him to return to his home country.

7.It is well settled law that the role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In a judicial review, the court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[4]. The Board’s Decision is basically a finding of fact which the Court in a judicial review will not interfere save for errors of law, procedural unfairness and irrationality in its Decision. For reasons as explained in Paragraphs 17 to 20 of the Form CALL-1, DHCJ P Li could not find any such vitiating elements and, hence, refused his leave application.

8.By his intended appeal, the Applicant is seeking to challenge DHCJ P Li’s finding that the Board’s Decision had not been tainted by any of the above vitiating elements, which is the sole ground for which the Court may review the Decision of the Board; but he has not provided any arguable basis for challenging DHCJ P Li’s decision. Having rigorously re-examined the Decision, the Form CALL-1 and all the papers with anxious scrutiny, this Court is unable to detect any such vitiating elements. Thus, the Applicant’s intended appeal has no prospect of success.

PREJUDICE TO THE RESPONDENT

9.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

10.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