RE DAVINDER RAM

HCAL 2866/2018

[2021] HKCFI 3057

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2866 OF 2018

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D E C I S I O N

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1.  The applicant is from India. He filed the non-refoulement claim in this case on 16/8/2015. On 11/3/2016, the Director requested him to complete the NCF and submit all relevant documents within 28 days. Meanwhile, he asked through the DLS for extension of time[1]. It was extended until 30/5/2016. On that day, the DLS informed the Director that they had no further instruction from the applicant. The Director treated the non-refoulement claim as withdrawn on 31/5/2016. [2]

2.  During an interview by the Director pursuant to a removal order on 1/3/2017, the applicant indicated that he would like to apply to re-open his claim.  The Director requested for further information in this regard latest by 23/3/2017.  The applicant failed to supply any information.

3.  Given that there was no explanation for the failure to complete the NCF, the Director refused his application on 31/3/2017.[3]  The decision was sent to Hei Ling Chau Correctional Institution where the applicant was detained.  He was also informed of the 14-day-time limit for appeal.

4.  The applicant filed a notice of appeal to the TCAB.  The notice was dated 6/4/2017.  It only reached the TCAB on 27/4/2017.  The adjudicator treated it as late filing.

5.  On 17/1/2018, the adjudicator wrote to the applicant requesting for reasons of late filing.  The letter was sent to CIC which was returned undelivered.  Presumably, the applicant had already been released.

6.  On 5/2/2018, the adjudicator re-sent the letter to the latest known address of the applicant according to the record of the Immigration Department. The applicant did not respond.  There was no return of mail to the TCAB.

7.  The adjudicator noted that the applicant had failed to provide any information in support of his claim.  He was assisted by the DLS and had been given ample time.  In addition, the applicant had not submitted any information to explain the late filing.  There was no special circumstance making it unjust to disallow late filing.[4]  There had been no unfairness.  The adjudicator refused the late filing.  The appeal was dismissed on 13/3/2018.  The TCAB decision was sent to his latest known address at To Kwa Wan.

8.  The applicant filed the leave application for judicial review against the TCAB decision on 13/12/2018.  He was 6 months out of time.  In his affirmation, he just disagreed with the TCAB decision.

9.  Deputy Judge Lung pointed out that the applicant had not made any objection to the Director’s decision.  The TCAB should consider all circumstances including the merits of the case.[5]  However, since the applicant had not supplied any information to the Director or the TCAB, the latter could not do so.  The Judge found that there was no error in law or procedure, the TCAB decision was reasonable.  The Judge refused to extend time.  He also refused leave on 29/6/2020.

10.  The applicant was out of time in filing the leave application by about 6 months.  He should have applied for extension of time.  He did not provide any explanation for the delay.  In considering whether there is good reason for the delay, a court should have considered the length of the delay, the reasons for the delay, the merits of the substantive application and the prejudice to the putative respondent if extension was granted. [6]

11.  The applicant had not provided any reason for the delay in the leave application.  The ultimate question boils down to the merits of the intended judicial review.  In fact, he had not provided any information to support his claim at all.  In the circumstances, there is no way to assess merits.  In my judgment, there was no good reason to extend time for the leave application.  The Judge rightly refused leave on 29/6/2020.  The decision was sent to CIC presumably he was detained there then.  It transpired that the decision was returned on 7/7/2020.  According to the remark written on the envelope, the applicant had already been released from the CIC on 24/2/2020.

12.  The applicant filed a summons on 6/11/2020 to seek extension of time to appeal the decision of the Judge.  He was then detained in the CIC again.  He was nearly 4 months out of time.  In his affirmation, he stated that he was illiterate and unrepresented.  He was not aware of the 14-day-time limit.  He did not receive the decision of the Judge as he was detained by the Correctional Services Department.

13.  In considering whether to extend time for appeal, this court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the merits of the intended judicial review; (4) prejudice to the respondent.[7]

14.  The applicant was not entitled to legal representation at every stage of the application.  He was informed of the time limit in relation to the Director’s decision on 31/3/2017.  He should be more vigilant about time limit. The applicant had not given sufficient detail as to the time of detention by the Correctional Services Department.  He had not given sufficient detail as to his detention in the CIC during the interim.

15.  The applicant was out of time for nearly 4 months.  It was substantial delay.  He had not been co-operative in processing his claim.  He failed to comply with the procedures at every stage of the application so far.  At the time of this leave application on 13/12/2018, he was then detained in CIC.  He did not inform this court his updated address after his release.

16.  In spite of this, the prospect of the intended judicial review is an important factor at this stage.

17.  As set out above, the adjudicator pointed out that the applicant had failed to provide any information in support of his claim.  There was no circumstance making it unjust to disallow late filing as he offered no explanation.  There was no way to assess the merits of his claim.  I agree with the decision of the TCAB.  I also agree with the decision of Deputy Judge Lung. In my judgment, there is no merit in the intended judicial review.

18.  Having considered all relevant factors, I refuse to extend time for appeal.