SUKHDEEP SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1124/2017

[2020] HKCFI 2038

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1124 OF 2017

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D E C I S I O N

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Introduction

1.  This is an application dated 16 July 2020 to appeal my decision of 12 October 2018, refusing leave to apply for judicial review.  The applicant had 14 days in which to apply to appeal that decision.  He did not do so.  He now requires leave to extend time to appeal against that order.  The applicant attended court and was assisted by a Punjabi interpreter.

Procedural background

2.  The applicant is a claimant under Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  He entered Hong Kong on 1 August 2014, was refused entry and immediately submitted a non‑refoulement (“NRF”) claim by way of written representation.  His NRF claim form was submitted on 1 September 2014.  He was interviewed by the Director of Immigration (“the Director”) on 16 and 22 September 2014.  The Director dismissed his claim under all heads, by Notice of Decision (“the Decision”) on 29 September 2014 and by Notice of Further Decision (“the Further Decision”) on 13 February 2017.  He appealed those decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Yu Cheuk‑man (“the Adjudicator”), did not hold a hearing.  The Adjudicator refused his appeal against the Decision on 5 June 2015 and his appeal against the Further Decision on 3 November 2017.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 21 December 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.  His application for leave to apply for judicial review was refused on 12 October 2018.  He had 14 days from that date to appeal that decision which would have expired on 26 October 2018.  By way of summons dated 16 July 2020, he seeks leave to appeal out of time.

4.  An applicant does not require leave to appeal against a CFI judge’s refusal to grant leave to apply for judicial review (Order 59, rule 21(1)(g)).  The applicant may appeal as of right.  However, an applicant who wishes to appeal against a CFI judge’s refusal to grant leave to apply for judicial review, which is an interlocutory order, has to observe the time limits for appeal under Order 53, rule 3(4) of the Rules of the High Court which allows 14 days.  Where the applicant is out of time to appeal against a judge’s refusal to grant leave to apply for judicial review, an extension of time may be granted by a judge of the Court of First Instance under Order 59, rule 2B(6).  The Court is required to consider (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of success in the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted[1].

5.  In order to obtain that leave, an application must be made promptly and it must be supported by an affirmation or affidavit deposing to any facts relied upon by the applicant and giving a full account of and explanation for the whole of the delay since time expired.

6.  Whilst the granting of an extension of time is entirely within the discretion of the Court, the applicant is required to explain the reasons for his delay as this forms part of the consideration of whether there is good reason to allow an extension of time.  The applicant accepted he was late in making this application.  He maintained that he did not receive the Form CALL‑1 or Order dated 12 October 2018.  He submitted that he was notified of the decision of this Court by the Immigration Department on 13 July 2020, which would have been some 21 months after both he and the Immigration Department were notified of the decision.

7.  The court file shows the applicant’s address to be Castle Peak Bay Immigration Centre (“CIC”).  That address was not updated and his Form CALL‑1 was therefore sent to that address.  It was returned by the postal services to the High Court.  I am surprised that the Immigration Department feels it appropriate to simply return official court correspondence when a detainee has been released, especially as it is in the best possible position to know the current whereabouts of a Form 8 holder.  Be that as it may, the correspondence was returned to this Court and, so far as I can see, no further action was taken.  Between that date and now, the applicant would have attended upon the Immigration Department on a regular basis every six weeks.  He tells the Court that he was not informed by the Immigration Department that he had been unsuccessful until very recently and he cannot say why, out of the blue, after some 21 months, that was the case.  He denied that it was because they were finally taking steps to have him removed.

8.  I do not accept that it took 21 months for the Immigration Department to inform the applicant that his application had been refused.  It is in any event the duty of a litigant to give the Court an address to which correspondence or notice can come to his attention in a timely manner[2]. He maintains that he had attended the High Court in 2018 and informed the Court of his new address but did not bring proof of having done so with him today. He also told the Court that he had since moved address but had not informed the Court of his new address even though he had been at pains to inform the Court of his address in 2018.  It is unfortunate that, for some reason unknown to the Court, this applicant’s case was not progressed by the Immigration Department expeditiously.  Nevertheless, the consequences of any delay arising from failing to provide an up to date address to the Court will fall upon the litigant[3]. I did not accept the explanation given.  In the event the applicant has had a significant extension to his residence in this jurisdiction.

9.  In his Affirmation, the applicant further complains that he was not invited to attend the hearing on his application for leave to apply for judicial review.  He claims that he requested an oral hearing on 18 May 2018, some five months after his Form 86 was filed.  There is nothing within the file which indicates this is the case, just as there is no indication he ever attended court to provide his residential address after release from CIC.  As he did not indicate that he wished to attend an oral hearing within his Form 86 as he was required to do under Order 53, rule 3(3) no such hearing was listed.  If he had indeed asked for an oral hearing in writing to this Court, the mistake as to his address may not have been made.

10.  For the sake of completeness, I do also note that he was not given a hearing by the TCAB with the reasons for such provided at paragraph 14 of the Decision therein.  As there was no dispute on the facts or law, the Adjudicator decided to proceed without such a hearing.[4]  It appears therefore that this applicant has not had the benefit of representing himself before the Adjudicator or before this Court until today and therefore, delay apart, I provided the applicant with a full opportunity to air those grievances which fell within the ambit of judicial review.  He wanted more time to do so but did not indicate, even in the most general of terms, any grounds of appeal.

11.  Even if the Court did accept that the explanation given for his delay was a reasonable one (which in this case it does not), the Court is nevertheless required to examine whether there is any merit in the applicant’s appeal[5]. Whether there is any such merit will depend upon well‑established legal principles[6] including the fact that the Court in judicial review is not to provide a further avenue of appeal on the merits of the underlying claim.  The question for the Court is whether any submissions truly seek to review the exercise of a judicial function and in so doing indicate a reasonable prospect of success in the intended appeal[7].  As he had nothing to submit on this point, the Court’s hands were tied.

12.  As the role of the Court in judicial review is not to provide a further avenue of appeal on the merits of the case from the decisions of the Director and the Adjudicator, it follows that an appeal from this Court should not be founded upon any attempt to appeal those same decisions.  Having provided the applicant with an opportunity to identify any grounds of review and, in particular, any grounds of review in respect of the carrying out of the functions of this Court, it was clear that no such grounds could be made out. It is an appeal from the decision of this Court which the applicant is seeking and the applicant should have looked to draft grounds of appeal on that basis.  He had the benefit of professional help in drafting his summons and affirmation in support and therefore should have been able to do so, if he had any such grounds.

Conclusion

13.  The applicant has now been in Hong Kong since 2014.  He has been interacting with various government agencies since that date. The explanation he has offered to this Court, as to why he did not come to know of the decision of this Court until July 2020 is not acceptable.

14.  In any event, I have considered his underlying application.  It has no merit as explained in the initial refusal of leave. There were no grounds of review and none could be ascertained from the papers. There was no complaint before the Court today as to its decision to refuse leave.  The applicant merely wishes the Court of Appeal to consider his situation afresh.  Having considered the length of delay, reason for the delay and underlying merits of his application, it would not be in the interest of justice to grant an extension of time in all the circumstances of this case.

15.  The applicant’s summons dated 16 July 2020 be dismissed.