RE AMARJIT SINGH

HCAL 1733/2018

[2022] HKCFI 164

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1733 OF 2018

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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 30 October 2020 seeking extension of time to appeal the order of Deputy High Court Judge Woodcock dated 17 December 2019 (the “Order”) refusing him leave to apply for judicial review of the decision of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) dated 13 October 2017 (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 against the judge’s order to the court of Appeal within 14 days after such order. By 30 October 2020, the time to appeal has expired. The application for leave to appeal is almost ten months out of time.

3.  On 30 October 2020, the Applicant lodged the present summons and supporting affirmation. At the time, he was detained in Castle Peak Bay Detention Centre. On 16 June 2021, this Court gave directions to the Applicant to file affirmation setting out the circumstances he came to know about the Order, explanation for the late application for leave to appeal out of time and the grounds of the proposed appeal. He was warned that his application will be determined on paper even if he did not file his affirmation within 14 days from the date of the direction. The letter containing the directions was sent to his address at Castle Peak Bay Detention Centre. It was returned undelivered as the Applicant had been discharged. After acquiring his up-to-date address, a second letter dated 28 June 2021 containing the same directions were sent to his address at Percival Street. The letter was not returned. The Applicant did not respond.

The Law

4.  In AW v Director of Immigration and William Lam[1], 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) explanation for the delay;

(3) merits of the substantive application;

(4) prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time; and

(5) whether the application raises questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.

Grounds for application

5.  In his summons, the Applicant sought to advance a “new sole ground of appeal”, but he did not particularize this new ground. In his supporting affirmation, he said:

“I am the Applicant herein. The decision made by the High Court Judge Woodcock has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country. Moreover, it’s not sufficient that I was a litigant in person, illiterate and unrepresented, thereby making me unaware of the rules regarding the 14-day time limit. I did not receive the correspondence on time from the Court regarding the Judicical Review be refused. I humbly request the court to allow my appeal out of time and give me a chance to explain.”

As the information in his summons and affirmation is not sufficient to support his application for leave, directions were given for him to file an affirmation explaining the circumstances he came to know about the Order and particularizing his grounds of appeal. The directions were aimed at assisting him to properly present his case. But he did not respond or comply with the directions. Thus, this Court could only consider his application on the basis of the summons and his affirmation.

Length of delay and reasons for the delay

6.  As mentioned above, the application was almost ten months out of time. The delay is very substantial. Obviously, the Applicant had received the Order, but asserted that he received it late. He gave no particulars or evidence when and how the Order came to his notice.

7.  The Applicant applied for leave to apply for judicial review on 20 July 2018 while he was detained in Castle Peak Bay Immigration Centre.

8.  The notice of hearing of the application for leave to apply for judicial review was sent to the Applicant’s reported address at Baker Street by post on 28 October 2019. That address was his reported address given to the Immigration Department upon his discharge from Castle Peak Bay Immigration Centre. Information about the hearing was given to his friend through his reported telephone number. The notice was returned unclaimed and the Applicant did not attend the hearing. His application was disposed of in his absence. A copy of the Call-1 Form and Order dismissing his application were sent to his address at Baker Street on 17 December 2019. These were not returned. There is no dispute that he had received the Call-1 Form and Order. In the circumstances, though the notice was returned, there was no reason to doubt he had not received information about the hearing.

9.  Almost ten months later, the Applicant applied for leave to appeal the Order. This time, he was again detained in Castle Peak Immigration Centre. My directions were sent to him at his address at Castle Peak Immigration Centre on 16 June 2021. It was returned, presumably because he had been discharged. The directions were re-sent to him at his reported address in Percival Street. He did not respond.

10.  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.”

Thus, 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.

11.  The address at Percival Street is a very recent address provided by him to the Immigration Department upon his discharge from Castle Peak Immigration Centre within eight months of his application for leave to appeal. There is nothing to suggest he did not receive the directions. Even if he did not receive the directions, he only had himself to blame for not keeping the court informed of his correspondence address. He had a history of not informing the court of his change of address while his legal proceedings are extant and on-going. The court cannot engage in an ever unending hide and seek game with him, if he adopts such an irresponsible attitude when pursuing his legal proceedings. Thus, he left this Court with the conclusion that he had no valid explanation for the delay. Ignorance of the law or his duty to inform the Court of his change of address or the time limit for appealing are not valid excuses. Hence, there is no valid explanation for the very substantial delay.

Grounds of appeal

12.  As mentioned in paragraph 5, the Applicant raised five grounds for his application for leave to appeal out of time:

(1) he had a new ground;

(2) procedural unfairness in that the Order was reached unfairly;

(3) he was illiterate;

(4) he had no knowledge of the time limit for appeal and

(5) he received the Order late.

13.  As no appeal had yet been launched, that ‘new sole ground of appeal’ could not be a ground of appeal but ground for non-refoulement protection. The Appellant gave no particulars of this new ground. This Court is unable to assess its chance of success. In any event, the function of the court in a judicial review is not to assess the non-refoulement claims afresh. The court will only scrutinise 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]. This new ground, whatever it is, has no bearing to an application for leave to appeal out of time.

14.  As for his complaint about procedural unfairness, he also gave no particulars. Having carefully read the Call-1 Form, all correspondence and other available documents in the court file, I am unable to find the slightest indication of procedural unfairness or that the Order was reached unfairly. Despite the Applicant did not give his correspondence address to court after his discharge from Castle Peak Bay Immigration Centre, the court took pains to contact the Immigration Department to obtain his latest reporting address, which the Appellant was duty bound to give to the Immigration Department. The notice of hearing was sent to that address. The court staff took pains in an attempt to contact him by phone and inform him of the hearing. A message about the particulars of the hearing was left with his friend who answered the call. The Applicant could only blame himself for not attending the hearing. There is no suggestion in his supporting affirmation that he did not receive information about the hearing. Neither that nor his absence at the hearing was raised as the basis of his complaint about procedural unfairness. In any event, he was informed via the notice that if he did not attend, he will be deemed to have waived his right to make oral submissions and the court will deal with his application according to the papers placed before the Court.

15.  Having rigorous examined 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; and observed a very high standard of fairness. It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds. Likewise, having examined the Call-1 Form, the court file, correspondence and all other documents, I am satisfied that there were no procedural unfairness or other irregularities in the making of the Order. DHCJ Woodcock observed the principles applicable to judicial review and examined the Decision with anxious scrutiny. The Order was made utterly without fault. There is no substance in the Applicant’s complaint about procedural unfairness.

16.  As for his claimed illiteracy and lack of knowledge of the law, in particular the time for appeal, it is trite principle that these are not valid grounds of appeal.

17.  As for his claim that he received the Order late, I have already set out the circumstances relating to the making and posting of the Order above. There was nothing irregular. It was sent to the Applicant’s reported address and he admitted receiving it, though he complained receiving it late. There is no evidence of the circumstances and when the Applicant received the Order. The complaint is just a mere un-particularised and unsupported assertion. Despite detailed directions given to him to enable him to present his case on this ground, he did not respond. He left this Court with the conclusion that this ground is not made out.

18.  In conclusion, the Applicant has failed to prove he has any arguable or valid ground of appeal.

Prejudice to the Applicant and proposed respondent

19.  As the Applicant has no arguable or valid ground of appeal, he would suffer no prejudice if his application is refused.

20.  As for prejudice to the proposed respondent, it is unlikely that this issue would be explored in an ex parte application for extension of time. 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 arrangements. To allow the challenge 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 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. This application does not raise any questions of general public importance. Allowing the application may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

No questions of general public importance

21.  The application does not raise any questions which are likely to have to be resolved by the courts in any event.

Conclusion

22.  The Applicant was almost ten months late. The delay was unexplained and deemed self-created for dubious motive. He had no arguable or valid grounds of appeal. Even if these grounds were allowed to be raised on appeal, the intended judicial review had no prospect of success. It would be a futile exercise of the Court’s discretion to grant extension of time to enable the Applicant to apply for a judicial review which is bound to fail. To allow such an un-meritorious challenge to proceed would be prejudicial to the proposed respondent and the administration. The application does not raise any questions of general public importance. Accordingly, the application for extension of time to appeal the Order of DHCJ Woodcock is refused.