RE JASPREET SINGH

HCAL 2213/2018

[2020] HKCFI 2897

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2213 OF 2018

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DECISION

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1.  On 16 January 2020 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing his appeal regarding his non-refoulement claim upon finding none of the grounds put forward by him reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in the process before the Director of Immigration (“the Director”) or the Board or in their decisions, and that there was no reasonable prospect of success in his intended application.

2.  The Applicant now by a summons issued on 11 August 2020 seeks extension of time to appeal against that decision, as the 14-day period for him to file his appeal under Order 53 rule 3(4) of the Rules of High Court, Cap 4A ended on 30 January 2020, and hence he was late by more than 6 months with his intended appeal. 

3.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.  In the Applicant’s case, a delay of more than 6 months must be considered as very substantial or excessive, for which he stated in his supporting affirmation of the same date as follows:

“I am the Applicant herein. I am presently detained by the HKSAR Immigration authorities. The decision made by the High Court judge has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country. I was in the custody of Correctional Services Department at the time my case was decided. I assumed I would be called to court. The reason I was unable to provide any grounds because I was not aware that I had to. Moreover, it’s not sufficient that I was a litigant in person, illiterate & unrepresented, thereby making me unaware of the rules regarding the 14-day time limit. I humbly request the Court to allow my appeal out of time and give a chance to explain.”

5.  At the hearing of his summons the Applicant however refused to address the court regarding his application or to answer any question, as he claimed to be not feeling well due to some back pain, that he needed to consult a doctor for medical treatment right away, and that the hearing of his summons should be adjourned to a later date.

6.  Given that the Applicant appeared to me perfectly capable of proceeding with his application with the assistance of the interpreter which should not take up any significant amount of his time before he was indeed to seek medical attention, and the fact that he is only aged 30 and was described in the decision of the Director of Immigration as an able-bodied adult with no known medical conditions but with a long history of delays/failures to provide requested information and materials within stipulated periods or at all, and that he also failed to attend screening interviews before the Immigration Department or his oral hearing in his appeal before the Board with some unsubstantiated or unaccepted medical reasons as set out in details in both the decisions of the Director and the Board, I was not convinced that further time should be wasted for adjourning the hearing of his summons, and refused his request for adjournment, whereupon the Applicant declined to answer any questions from the court or to make any representation regarding his application. 

7.  In the circumstances I proceeded to deal with his application on the basis of what he had stated in his supporting affirmation as set out above, starting with his reasons for the delay of having been detained at the Castle Peak Bay Immigration Centre (“CIC”), and of not being aware of the rule requiring the filing of appeal within 14 days.

8.  Of the latter reason I can say right away that ignorance of the law can never be accepted as any valid reason for failing to comply therewith, while for the former, notwithstanding the inevitable inconvenience and delays for incoming and outgoing mails as well as access to legal assistance due to various restrictions imposed at the detention center, they cannot in my view justify such substantial delay on the part of the Applicant with his intended appeal.

9.  To be fair, I note that the last day for the Applicant to file his appeal in fact fell on the day after the General Adjourned Period (“GAP”) for court proceedings announced by the Judiciary on 29 January 2020 due to the Covid-19 pandemic, which ended only on 3 May 2020 with staggered re-opening of the various registries and tribunals, but even if one is to discount such period, the Applicant would still be late by some 3 months with his intended appeal which is still not acceptable for the reasons given.

10.  More importantly, nor did he put forward any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable either in his summons or affirmation or at the hearing of his summons as noted above, while his complaint of not being given an oral hearing for his application for judicial review cannot stand as he never requested for one, and when he had declined to do so at the hearing of his summons before me.

11.  In any event, the Court of Appeal has held that there is no absolute right to an oral hearing as the question must depend on the standard of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision, the issues involved and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representation: ST v Betty Kwan [2014] 4 HKLRD 277.

12.  Furthermore, based on the facts of the Applicant’s claim and the unchallenged findings by both the Director and the Board in their decisions that the risk of harm to the Applicant was a localized one and that it was not unreasonable or unsafe for him to relocate to other part of his home country and hence there was no justification to afford him with non-refoulement protection in Hong Kong, it is therefore clear that no useful purpose would have been served by an oral hearing for his application for judicial review, nor can it arguably amount to procedural unfairness or breach of high standards of fairness in the circumstances.

13.  As such and in the absence of any error in the decision being clearly and properly identified by the Applicant, I do not see any prospect of success in his intended appeal.

14.  In the premises, it would be futile to extend time for what appears to be a hopeless appeal.  Accordingly, I refuse his application for extension of time to appeal, and dismiss his summons.