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

HCAL 540/2019

[2023] HKCFI 812

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 540 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 6 March 2023 (the “Summons”) for extension of time to appeal the order of this Court dated 29 April 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 14 February 2019 (the “Decision”).

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 twenty-one 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 application is made nine months and twenty-one days out of time. The delay is very substantial. The Applicant’s explanation is that he had not received the Order as he was detained in a Correctional Services institution at the time the Order was issued. He was only informed by an immigration officer that his leave application had been refused. He was also unaware of the time limit to appeal. He was not so detained at the time of filing of the Summons.

5.The Order and Form CALL-1 were sent to the Applicant’s then residential address at Bedford Road on 29 April 2022. There is no record in the Court’s file that he had updated the Court with his change in address upon his detention or upon his discharge. Obviously, the reason for his not having received the Order and Form CALL-1 is that he had not updated the Court with his change of address. In the circumstances, 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].

Grounds of appeal and prospect of success of the intended appeal

6.The Applicant’s ground of appeal as stated in his supporting affirmation is that the decision of this Court had been reached unfairly without allowing him an opportunity to clarify his case and situation in his country. As noted in Paragraph 16 of the Form CALL-1, the Applicant had not advanced any grounds for his intended judicial review. He had not respond to this Court’s letter dated 13 December 2021 requesting him to file submissions. He had never advanced any complaint about lack of opportunity to clarify his case and situation in his country in his affirmation in support of his leave application. Thus, there was no complaint that he had not been given any opportunity to clarify his case and situation in his country before the Board. As explained in Paragraph 15 of the Form CALL-1, the primary decision-makers in a claim for non-refoulement protection are the Director of Immigration and the Board. They alone assess the evidence and find facts including those relating to matters allegedly giving rise to non-refoulement claim. 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]. This Court has no power to make finding of fact in respect of these issues. Thus, whether this Court has allowed him opportunity to clarify his case and situation in his country has no bearing on the Decision of the Board sought to be reviewed and could not be a valid ground for review. Accordingly, there is no arguable ground of application for judicial review. His application for judicial review has no prospect of success at all.

Prejudice to the respondent

7.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

8.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