Sumon Abu Saiyed v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1448/2020

[2024] HKCFI 2229

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1448 OF 2020

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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 August 2024 (the “Summons”) for extension of time to appeal the order of this Court dated 16 November 2023 (the “Order”) refusing him 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 19 May 2020 (the “Decision”).

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 the order was made.  In Jagg Singh and Torture Claims Appeal Board / non-Refoulement Claims Petition Office^[1], the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

Length of delay and reasons for the delay

3.By 6 August 2024 when the Summons was filed, almost nine months had lapsed since the date of the Order.  The application is 8 months and 7 days out of time.  In his summons and supporting affirmation, the Applicant alleged that he had never received the Order and he was only informed by an immigration officer that his leave application had been refused.  His assertion did not contain sufficient information to enable the Court to determine the extent of the delay since he became aware of the outcome of his leave application.  

4.The Court noted from the court file that he had made various changes of his address since filing his Form 86 without notifying the court.  That appears to be the reason why he did not receive the Order and Form CALL-1 in respect of his leave application.  To assist him to present a proper application for extension of time, this Court gave him directions by letter dated 8 August 2024 to file a statement within 14 days of the letter stating, inter alia:

(a)  the date when and the circumstances under which the Order and Form CALL-1 were first brought to his notice;

(b)  if the delay is related to change of address, state:

(i)    the dates of all changes of address since 9 August 2023 when he was released on recognizance;

(ii)   the date of his reporting the changes to the Immigration Department; and

(iii)  The date of his informing the changes to the High Court; and

(c)  the grounds of his intended appeal.

5.In response, the Applicant filed a letter stating:

“… But, actually I did not get any letter about the decision of my Judicial Review from the High Court. At the regular reporting time in September 2024, the Immigration officer informed me about the decision of my JR in High Court. After that, I decided to make application for appeal and I took help from my friend because I have severe problem in my home country. If I return back there I will be killed by my enemies. Now the situation in Bangladesh is getting worse. No administration work properly and people are murdered everyday in Bangladesh.” (Emphasis highlighted by the Court)

6.The first two sentences of the statement quoted above added nothing but confusion to what he had asserted in his summons.  The Applicant now asserted that he only became aware of the Order when he was informed by an immigration officer during his regular reporting in September 2024.  September 2024 has yet to come.  He could not have meant September 2023 as the Order was issued two months after.  The word “September” is probably a typographical error.  The Court could have no idea when he reported his recognizance to enable it to determine the extent of the delay since he became aware of the Order.  This Court could have invited him to clarify the error.  However, for reasons as will become obvious in the latter part of this judgment, it is unnecessary to do so.

7.The Court noted that the address given by the Applicant in his Summons is not the same as the address to which the Order was sent. Obviously, he could not have received the Order. Chronologically, the Applicant gave an address in Ping Fu Path in his Form 86 in July 2020.  Later, he was held in custody and then released on recognizance on 9 August 2023 when he gave an address in Wing Hing Wai.  That was the address to where the Order was sent in November 2023.  The address he gave in his summons is in Shek Pui Street.  According to the court file, he had never informed the court about his various changes of address. That was why he was given specific directions to inform the Court the dates of all his changes of address since 9 August 2023 when he provided the Wing Hing Wai address upon his release on recognizance and the dates of his notifying the Immigration Department and the High Court of the change.  He did not comply with those directions and avoided providing the information.  On the information available, it is obvious that the Applicant did not receive the Order because he had changed  his address without informing the Court.

8.In Karamjit Singh[2], 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.  His failure to receive the Order was the natural and inevitable consequence of his neglect.  Ignorance of the law or his duty is not an excuse.  For this reason alone, it is sufficient for the Court to come the conclusion that there is no valid explanation for the delay.  There is, therefore, no need to explore the typographical error relating to the date when he reported recognizance at the Immigration Department in 2024.

Prospect of success of the intended appeal

9.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a

non-refoulement claim 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 of that decision, the court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[3].  

10.Despite the Court’s specific directions, the Applicant did not provide the grounds of his intended appeal.  He only repeated his risk of harm if he is returned to Bangladesh.  It contains no assertion or information as to where this Court has gone wrong in its finding that the Decision of the Board was not the result of errors of law, procedural unfairness or was irrational.  His assertion is just a challenge of the Board’s finding of fact.  It cannot be a valid or arguable ground of appeal.  In the absence of any specific grounds challenging the Court’s decision in refusing leave to apply for judicial review, the best the Court can do is to re-assess the decision focusing on the above vitiating elements.

11.I have rigorously re-examined the Form Call-1, the Decision, the papers and the evidence with anxious scrutiny.  I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the issues; the burden of proof and standard of proof; and observed a very high standard of fairness.  I am satisfied that there is no such vitiating elements in the Board’s Decision.  On the material now available, the Applicant’s intended appeal has no prospect of success at all.

Prejudice to the respondent

12.The prejudice to the proposed respondent and to public administration, if his application is allowed, is obvious.  It is a clear abuse of legal process to challenge the court’s decision without proper and good grounds of appeal and which is bound to fail. Despite having been given the opportunity to furnish his grounds of appeal, the Applicant failed to do so.  To allow such a challenge to proceed would encourage other claimants to indulge in such abuse and create prejudice to the intended respondent and the administration.  It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to 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 his application may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

13.For the above reasons, the application for extension of time to appeal is refused.

The applicant is not represented