RE RASCHPAL SINGH

CAMP 78/2020

[2020] HKCA 978

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 78 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 94 OF 2018)

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J U D G M E N T

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Hon Lam VP:

1.  I respectfully agree with the judgment of Yuen JA. In connection with the impermissible change of parties (whether in the course of proceedings below or on appeal) without the leave of the Court, another division of this Court recently came to the same conclusion as that expressed by Yuen JA below: see Chong Yu On v Court of Final Appeal [2020] HKCA 970 at [45] to [56]. Unless there is a court order granting leave to substitute a party, the parties to a set of proceedings are those named in the originating process. It is not up to an applicant or plaintiff to name some other party as party to the proceedings in any documents filed with the court without first making an application for substitution or joinder. Since a misstatement in the naming of a party in court documents can cause confusion and distortion to the claims advanced, I fully agree with Yuen JA’s observations on the need for the Registry to disallow such improper documents to be filed. If such documents were somehow filed without the leave of the court, the matter should be brought to the attention of the Registrar who may give directions for expunging the improper documents from the record. It would then be up to the filing party to file a document with the proper party named in it. This approach should be applicable irrespective of whether the filing party is acting in person or with legal representation.

Hon Yuen JA:

Director of Immigration’s Decision

2.  On 7 June 2017, the Director of the Immigration Department (“the Director”) rejected the applicant’s claim for non-refoulement which had been advanced on the grounds of torture, violation of Bill of Rights Articles 2 and 3, and persecution risk (“the Director’s Decision”).

Applicant’s appeal/petition and subsequent withdrawal 

3.  On 30 June 2017, the applicant filed an appeal/petition to appeal the Director’s Decision.  The appeal (against the Director’s Decision relating to the torture claim) was made to the Torture Claims Appeal Board pursuant to the Immigration Ordinance Cap.115.  The petition (against the Director’s Decision relating to the other claims) was made to the adjudicator pursuant to Article 48(13) of the Basic Law.  As the TCAB member hearing the appeal would also be the adjudicator hearing the petition, I will for convenience refer to the member/adjudicator as “the TCAB”.    

4.  However, before the appeal/petition was heard by the TCAB, on 9 October 2017, the applicant submitted a Detainee Submission Sheet in which he withdrew his appeal/petition.

TCAB’s disposition of appeal/petition

5.  By a letter dated 12 October 2017, the TCAB acknowledged receipt of the withdrawal and said:

“As a result of the foregoing [the withdrawal], the Board has given direction that your Appeal/Petition is dismissed. The Board has also directed that the decision of the immigration officer of 7 June 2017 is confirmed.

Please note that your Appeal/Petition has now been disposed of and finally determined by the Board. No further action will be taken by the Board in respect of your Appeal/Petition”.

Applicant’s request to re-open appeal/petition

6.  However, about 2 months after that, the applicant sent an undated letter to the TCAB, which it received on 14 December 2017.  This letter said (where material):

“Before I was withdraw my appeal Because I want to go back my country. But Now I can’t go back with any condition Because my life is still danger in my country and I cannot go back. So Please Proceed me Re-open Appeal form”.

TCAB’s response 

7.  By a letter to the applicant dated 19 December 2017, the TCAB stated that as a consequence of his withdrawal,

“(a)  the Board Member has given a Direction that your Appeal/Petition is dismissed;

(b)  the Board Member has given a Direction that the Notice of Decision by the Immigration Department dated 7 June 2017 is confirmed;

(c)  your Appeal/Petition has been disposed of, or has been finally determined by the Board;

(d)  No further action can or will be taken by the Board in relation to your Appeal/Petition because the Board is ‘functus officio’, this means that, after the Board has accepted your withdrawal, the Board has no power or authority to deal any further with your Appeal/Petition. This position in law has been confirmed by the decision in HCAL20/2015 dated 17 March 2017” [Hussain Tasawar v Betty Kwan, Adjudicator (Torture Petitions) of the Petition Team of the Security Bureau and anor [2017] 2 HKLRD 567].

Application for leave to judicially review Director’s Decision

8.  On 18 January 2018, the applicant filed a Form 86 in the Court of First Instance (“CFI”) in HCAL94/2018 for leave to commence judicial review.  The “Immigration Department” was named as the proposed respondent. 

9.  In the applicant’s affirmation in support, he stated that “the Immigration refused my case”, and that he wanted time to provide documents related to his case and to review his case.

10.  There was no indication that his earlier withdrawal of the appeal/petition to the TCAB was not deliberate or informed (see para.6 above), nor was there any satisfactory explanation for his change of mind thereafter.

CFI’s 2019 Decision

11.  On 3 October 2019, DHCJ Bruno Chan (“the judge”) refused an extension of time for, and dismissed, the application for leave to apply for judicial review of the Director’s Decision given on 7 June 2017.  The learned judge’s observations were set out in the document called “CALL - 1 Form” (“the CFI’s 2019 Decision”). 

12.  In this Decision, the judge noted the TCAB’s response (set out in para.7 above).  However, he proceeded to examine the merits of the applicant’s application for leave to judicially review the Director’s Decision.  

13.  The judge held that “as the last day of the three-month period for the application to file his Form 86 fell on 7 September 2017, he was therefore more than four months late with his application” [para.15].  The judge regarded the delay as substantial [para.16] and noted that “given the absence of any details of particulars as to what caused such changes of his mind about the appeal”, he was not satisfied that the applicant had provided any good reason for his delay. 

14.  The judge also noted that the applicant had not put forward any ground for his intended challenge and he did not see any merits or prospect of success in the intended application [para.17], and further noted that it is well-established that judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for the presentation of the claim is in the screening process before the Immigration Department and the TCAB [para.18].

15.  Finally, the judge directed the applicant that if he wished to appeal, he would have to seek leave from the CFI within 14 days.

Applicant’s summons in Court of First Instance

16.  On 26 November 2019, the applicant filed a summons in the CFI in the same proceedings i.e. HCAL94/2018.  The name of the defendant was left blank in the summons.  Apart from alleging that he was late due to lack of knowledge and insufficient sources, and that he wished to “process [his] case further”, the applicant did not indicate what order he sought. 

17.  However, what is notable is that in the supporting affirmation, the TCAB was named as the sole defendant, not the Director of Immigration or the department as in the Form 86, even though no application had been made to substitute parties under the Rules of the High Court. 

CFI’s 2020 Decision  

18.  Be that as it may, the summons was heard by the judge.  In a Decision given on 29 June 2020 (“the CFI’s 2020 Decision”), the judge clarified [para.2] that what the applicant sought was leave to appeal out of time against the CFI’s 2019 Decision, i.e. the refusal of leave to judicially review the Director’s Decision. 

19.  On the basis of the direction he had given requiring the applicant to apply for leave to appeal, the judge held that as the 14-day period had expired on 17 October 2019, there was a delay of 5 weeks when the applicant filed his summons on 26 November 2019.  The judge found the applicant had not provided any good or valid reason for his delay [para.5].

20.  The judge also found that the applicant had failed to provide any proposed grounds of appeal [para.6].  Accordingly, the summons was dismissed.

Applicant’s summons in Court of Appeal     

21.  On 3 July 2020, the applicant filed a summons in this court in CAMP78/2020.  The name of the defendant on the summons was the TCAB (even though it was on an intended appeal from HCAL94/2018 in which the proposed respondent was the “Immigration Department”).  There was no reference to the Director of Immigration or the department. 

22.  The supporting affirmation also named only the TCAB as defendant. 

23.  On 12 August 2020, the applicant filed written submissions in which he complained against the decision given by both the Director of Immigration and the TCAB.

Discussion

Change in identity of respondent/defendant

24.  Before I discuss the merits, there are two procedural matters.  First, the applicant should not have been allowed to change the identity of the respondent/defendant (even if putative) at different stages of the proceedings without an order of the court. 

25.  The respondent named in the Form 86 (being the originating process in judicial review) was the “Immigration Department”.  The judge therefore treated the application as one against the Director’s Decision.

26.  However, in the summons in the CFI filed on 26 November 2019, the name of the defendant was left blank, and the supporting affirmation named the TCAB as the only defendant.  As for the CAMP in this court, in both the summons and in the affirmation, the only defendant named was the TCAB, but the applicant’s written submissions were directed against both the Director of Immigration and the TCAB. 

27.  In other words, without any order for substitution or addition of parties pursuant to the Rules of the High Court, the applicant has “changed horses mid-stream” twice, first from the Director solely to the TCAB solely, and then from the TCAB solely to both the Board and the Director.

28.  This is irregular and unsatisfactory.  The applicant should not have been allowed to file documents where the name of the respondent/defendant was left blank, nor should he have been allowed to name persons/institutions as substituted or additional parties without an order of court allowing him to do so.  Although there has been a massive increase in these types of claims in recent years and the court staff have had to deal with claimants who are not legally represented, nevertheless the court should be alert to refuse filing of documents which do not comply with court procedures.  This is to ensure that claims can be processed in an orderly way to enable their proper adjudication.  This is not pedantry, for jurisdictional issues may arise, and the question whether a claim has any merits depends on the entity against whom the claim is made.

29.  For the future, it is hoped that the registries will be alert to this, and require any litigant filing documents (whether legally represented or not) to insert the name(s) of the party/parties affected, who must be one or more of the parties to the originating process.  If a litigant names one entity as a party, but seeks relief against another entity only, the court seized of the application would be entitled to strike out the application as an abuse of the process.

Leave not required for CFI’s 2019 Decision

30.  The second matter is this.  In the CFI’s 2019 Decision, the judge considered the applicant to be “way out of time” [para.14], as “the last day of the three-month period for the applicant to file his Form 86 fell on 7 September 2017” [para.15].  

31.  In H v Director of Immigration and AH v Director of Immigration [2020] HKCFA 22 (“H and AH”), decided on 14 July 2020 after the CFI’s 2019 Decision, the Court of Final Appeal held that it is not appropriate to express the time limit for judicial review “as a single fixed period of three months” [H and AH, para.37(1)]. 

32.  Be that as it may, the judge was undoubtedly right to have found that undue delay has occurred as the application was made outside the three-month period [H and AH, para.37(1)], and he was right to apply the principles relating to applications for extension of time [H and AH, para.15].

33.  However, what H and AH further decided was that an order refusing an extension of time and dismissing an application for leave to issue judicial review (like the one made by the judge in the CFI’s 2019 Decision) was appealable as of right [H and AH para.41].  Accordingly, with the benefit of hindsight[1], it was incorrect for the judge to have directed  that the applicant had to apply for leave to appeal, within 14 days or at all. 

True nature of summons in CAMP78/2020

34.  In other words, the applicant could have appealed the CFI’s 2019 Decision as of right, but he should have filed his appeal straight to the Court of Appeal within 14 days thereafter [Rules of High Court, Order 53 rule 4].  He did not do so.  Accordingly, this court should treat the summons filed in this court in CAMP78/2020 as an application for extension of time to appeal the CFI’s 2019 Decision.  Pursuant to Order 59 rule 14A(1) RHC, this court considers it appropriate to decide this interlocutory application on paper.

Principles governing application for extension of time to appeal

35.  The principles governing the exercise of the court’s discretion to extend time to appeal are well-established.  The court would consider: (1) the length of the delay; (2) the reasons for delay; (3) the merits of the intended appeal; and (4) any prejudice to the intended respondent (although the lack of prejudice does not mean that time should be extended).

(1)  Period of delay

36.  As for (1), as discussed above, the applicant should have filed his Notice of Appeal to this court within 14 days of the CFI’s 2019 Decision (i.e. by 17 October 2019).  He filed his summons in this court on 3 July 2020.  The delay is some 8 and 1/2 months.

(2)  Reasons for delay

37.  As for (2), it is noted of course that the applicant had first applied for leave to appeal as a result of the judge’s direction, but this only provides a reason for part, but not all, of the delay.  The applicant did not file his summons in the CFI for leave to appeal until 26 November 2019, which in any event is more than a month later than the 14-day deadline (17 October 2019) for an appeal to this court.  In the summons in CAMP78/2020, the applicant said he was late due to lack of knowledge and “insufficient sources”. He did not indicate what steps he had taken to apprise himself of the procedure for challenging the CFI’s 2019 Decision, or when he first became aware of the procedure. 

(3)  Merits of intended appeal

38.  As for (3), in order to examine the merits of the intended appeal, the first issue is to ascertain the order from which the applicant wishes to appeal.  This is confusing in the present case due to the changes made by the applicant to the identity of the other party named. 

39.  In my view, the answer to the issue must lie in the proceedings commenced by the applicant and the court’s decision on the relief sought therein.  In his Form 86, the applicant sought to judicially review the Director’s Decision. Accordingly, in the CFI’s 2019 Decision, the court gave its decision based on the contents of that Form 86.  That is the order that this court would adjudicate upon on appeal, as the applicant cannot, by changing or adding parties without any order of the court, subsequently change the nature of the proceedings or the relief he wishes to seek.  Further in the CFI’s 2020 Decision, the judge recorded the applicant’s clarification that the applicant wished to appeal the CFI’s 2019 Decision (which related to the Director’s Decision).      

40.  Before discussing the CFI’s 2019 Decision, it would be helpful to remind ourselves of Re: Moshsin Ali [2018] HKCA 549[2], where this court (Lam VP and McWalters JA) undertook an extensive review of the administrative structure for the processing of torture claims.  It examined the two tier process (first the Immigration Department, followed by review by the TCAB) for the processing of such claims. In particular, it noted important features of the TCAB’s review function.  It concluded that as a result, the TCAB Decision supersedes the director’s decision and represents the final decision on the claim at the end of its processing. Importantly, it held that consequently, “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant”.  (Emphasis added).

41.  In the present case, the applicant pursued, and then withdrew, his appeal to the TCAB.  However, in my view, that does not mean that he could apply to the court for leave to judicially review the Director’s decision.  Quite apart from the effect of “final determination” under s.37V(2), it is a well-established principle of judicial review law that judicial review is a last resort and generally inappropriate where suitable alternative safeguards exist.  The procedure of an appeal to the TCAB (with its wide review functions as set out in Moshsin Ali) was a suitable alternative safeguard, of which the applicant could (and did) avail himself.  The applicant has not contended that the TCAB appeal procedure was not a suitable alternative safeguard.  Indeed, he had originally pursued an appeal before withdrawing it and then starting judicial review proceedings.  The judge rightly held in the CFI’s 2019 Decision that “… the proper occasion for an applicant to present and articulate his claim is in the screening process before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board …” [para.18].  In my view, irrespective of the delay, the judge was entitled to refuse to give leave to commence judicial review by reason of the suitable alternative safeguard ground alone, and he need not have gone into the merits of the Director’s Decision.         

42.  Although the above analysis is set out in the context of an appeal from the rejection of the torture claim under the Immigration Ordinance, the same considerations apply in the rejection of the applicant’s other claims where the suitable alternative safeguard was by petition to the adjudicator.     

43.  For the above reason, there are no merits in the applicant’s intended appeal from the CFI’s 2019 Decision, which as discussed above, is the only order from which the applicant can competently (apply for extension of time to) appeal.  As there was no court order allowing the applicant to add or substitute the TCAB in the proceedings (HCAL94/2018), it is strictly speaking not necessary for this court to deal with it.

44.  In any event, even if the applicant’s application for leave to commence judicial review is to be regarded as relating to the TCAB’s response refusing to “re-open” the appeal/petition, rather than the Director’s Decision, there are no merits in that, as the TCAB was correct in its view that it was functus.  In Re Ali Usman, CACV 70/2018, [2018] HKCA 955 this court (Lam VP and Barma JA) approved DHCJ Yee’s judgment in HT v Betty Kwan (Adjudicator) and held [para.25]:

“25. In our view, HT v Betty Kwan was rightly decided and we consider that the functus principle applied to the Board in relation to validly withdrawn claims. The decision of the Board contained in its letter to the applicant dated 5 September 2017 was therefore correct, and is not one in respect of which any grounds for judicial review can be made out”. (Emphasis added).

45.  In the present case, as noted earlier, at no stage did the applicant assert that his withdrawal of the appeal/petition was invalid, in the sense of not being the result of a deliberate and informed decision.

Order

46.  As the intended appeal is unarguable, it would be futile to extend the time to appeal. Accordingly, the applicant’s summons filed on 3 July 2020 is dismissed.  Since the present application is totally without merit, it is ordered under Order 59 r. 2A(8) RHC that the applicant may not request this court’s determination to be reconsidered at an oral hearing.