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

HCAL 3247/2019

[2025] HKCFI 6310

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3247 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

1.  Extension of time to apply for leave for Judicial Review be refused; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 31 October 2019 for 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 21 December 2018 (the “Decision”) refusing his late filing of a notice of appeal (“NOA”) against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 19 June 2018 (the “Notice”) refusing his application for non-refoulement protection.

2.  The Applicant is an Indian national. He lodged a non-refoulement claim by written representation on 14 April 2015 and 17 January 2018. His claim was rejected by the Director’s Notice dated 19 June 2018. The Notice was delivered to him on the same day care of the Duty Lawyer Service representing him. In accordance with section 37ZV(1)(c) and 37ZV(3) of the Immigration Ordinance (“the Ordinance”), the Notice was deemed to have been given to him on the second working day after delivery, ie on 21 June 2018. Though the NOA sought to be filed by the Applicant was dated 29 June 2018, it was only first received by the Board on 23 July 2018. Section 37ZR of the Ordinance provides that a person who wishes to appeal against a decision of the immigration officer must file a NOA with the Board within 14 days after Notice of the Decision was given to him. Hence, the NOA was filed 18 days out of time. After due consideration, the Board issued its Decision on 21 December 2018 refusing the Applicant’s late filing of the NOA, pursuant to section 37ZT(4) and paragraph 9 of the Petition Guide. The Applicant now seeks leave to apply for judicial review of the Board’s Decision.

Explanation for the late application

3.  The leave application was filed ten months and ten days after the date of the Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was lodged more than seven months out of time. Extension of time to file the leave application is required.

4.  In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in favour of granting extension, the court would be more relaxed with the remaining two. Conversely, if it is against the granting of extension, there is no need to consider the remaining two factors. However, where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung[2], per Litton PJ. The delay in this case so substantial that leave may be refused on this ground alone without considering the merits of the substantive application, unless the Applicant has a reasonable and credible explanation for the delay.

5.  Despite clear warning in the Form 86 that an applicant is required to state his grounds for application and reasons for delay, if any, the Applicant provided neither. At the hearing, after the relevant legal provisions as mentioned in the above paragraphs had been explained to him, the Applicant explained that he had not received the Decision as he was held in jail custody because of a criminal offence and he had no knowledge about the legal procedures and had no assistance in prosecuting the leave application. He was held in custody on 11 April 2018 until 28 November 2019. He was first detained in Lai Chi Kok Reception Centre in January 2018 and then transferred to immigration detention in Castle Peak Bay Immigration Centre (“CIC”) on 1 October 2019 after serving his sentence. He received the Decision about seven to eight months after he was in jail custody, ie between November and December 2018. That tallies with the date of the Board’s Decision. He must have received the Decision in Lai Chi Kok Reception Centre in early January 2019 despite being held in jail custody.

6.  When asked to explain why he did not approach the welfare officer for assistance in prosecuting the leave application, he said that the welfare officer did not know about the procedures and told him to wait until he was released and then he could reopen his application. He was transferred to CIC on 1 October 2019. There, he was advised by an inmate from his home country that he could apply for judicial review and that inmate assisted him in filing the leave application after that inmate’s release from CIC.  

7.  The centerpiece of his explanation is the welfare officer’s advice that he could reopen his application after his discharge from custody. To the Court’s knowledge, welfare officers are charged with the specific duty to assist inmates in their welfare including, in particular, assisting them in their legal proceedings, such as appeals, for which there are time requirements. The Court has seen affirmations and summonses filed by welfare officers or their assistants. The Applicant’s allegations against the welfare officer is so serious that it is incapable of belief. It is implausible to accept that the welfare officer did not know about the importance of observing time limits and negligently advised the Applicant to defer doing anything about the challenging the Decision. It is all the more impossible to believe that the welfare officer would have fraudulently informed him that he could reopen his application after his release from prison. All that the welfare officer was required to do was to assist the Applicant by filling his name, the parties, ie the Board and the Director of Immigration, and the decision sought to be reviewed and sending the completed form to a clerical staff to file in the Registry of the High Court. The welfare officer would not have for no credible reason risked his career and even risk subjecting himself to criminal prosecution just to save a few stroke of his pen.

8.  On the other hand, if a person is genuinely in fear of his safety returning to his home country, he would have spared no time to challenge the Decision which has the effect of bringing about his iminent repatriation upon his release from prison. He would have done all that he could to seek assistance to prosecute the leave application and asked the welfare officer or other inmates for assistance. The Applicant had nothing to do while in prison custody. The likelihood was he just sat on the Decision and did nothing about it until he was about to be released from CIC. The Court is unable to accept his explanation.

9.  The Applicant’s unexplained delay not only evinced a lack of intention to prosecute his leave application, but also reflects an underlying lack of merits in his leave application and his non-refoulement claim. His conduct resulted in delay in his refoulement process. The delay is so inordinate as to be beyond the limit which any court could indulge. His conduct is a clear abuse of legal process. Thus, extension of time to file the leave application is therefore refused under the principle in Po Fun Chan v Winnie Cheung without the need to consider merits of the leave application.

Conclusion

10.  For the above reasons, extension of time to apply for leave to apply for judicial review and the leave application are refused.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1