AMANDEEP SINGH v. DIRECTOR OF IMMIGRATION

HCAL 1073/2021

[2024] HKCFI 3686

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1073 OF 2021

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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 16 October 2024 (the “Summonses”) seeking leave to appeal the order of this Court dated 26 September 2024 (the “Order”) refusing his application for leave to apply for judicial review (the “leave application”).

Legal principles applicable to application for extension of time to appeal

2.  Under Order 53, rule 3(4) of the Rules of the High Court, an appeal against any decision of the court refusing an application for leave to apply for judicial review shall be made within fourteen days after the date of the decision. Thus, by 16 October 2024 when the Summons was filed, his application was six days out of time. Leave to appeal out of time is required.

3.  In Jagg Singh and Torture Claims Appeal Board / Non-refoulement Claims Petition Office[1], the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if extension of time was granted. Usually, prospect of success of the intended appeal is the single factor which carries most weight in deciding whether to grant extension of time. The fourth factor needs to be considered only if the sum total of the first three are in favour of granting extension of time.

Discussion and conclusion

4.  The application is only six days late. Indulgence may be readily given if there is a reasonable explanation for the delay and the intended appeal has good prospect of success. In the Summons, the Applicant said he did not receive the Order within reasonable time. In his supporting affirmation, he said he did not receive the Order within 14 days, presumably since the date of the Order. If that is true, six days would be a reasonable time since his receipt of the Order within which to appeal. On the other hand, the delivery service of Hong Kong Post is usually very reliable. An alleged late delivery of 14 days is a bare assertion, which begs belief. He therefore has to explain the reasons for the late delivery and why for which he is not responsible. The Applicant has also not advanced any ground of appeal. To assist him to present a proper application for extension of time, the Court gave him given specific directions to file an affirmation or statement setting out: (1) the date when and the circumstances under which he received the Order with supporting documentary evidence, if available; and (2) the grounds of his proposed appeal within 14 days. He was also advised that his application for extension of time will be determined on paper after 21 days from the date of the directions regardless whether the directions have been complied with. In purported compliance with the directions, the Applicant filed a statement on 1 November 2024.

Explanation for the delay

5.  The essence of his explanation is that he had moved out of the address in Sau Mau Ping (the “Sau Mau Ping address”) once since 28 July 2021 because he had some personal issues with his wife. He claimed he had recently updated his address with the Immigration Department, but the Immigration Department did not issue any documentation regarding his notification of change of address. He did not say when he moved out and when he reported the change. He said he was not sure if he needed to update his change of address with the Court. He had never received any letter from the Court informing him about the outcome of his leave application. Then, on 15 October 2024, he was informed by the Immigration Department that his leave application had been denied by the Court. His account fully explained the reasons for the delay, which is he had moved without informing the Court of his change of address.

6.  On the fact, he put down his Sau Mau Ping address on the Form 86. He never informed the Court of his change of address until recently. When he filed his Form 86, he indicated that he did not request an oral hearing. Hence, his leave application was determined on paper without an oral hearing. Before issuing the Order and Form CALL-1 relating to his leave application, this Court took care to check his up-to-date address with the Immigration and was informed on 24 August 2024 that he resided at the Sau Mau Ping address as stated in his Form 86. That ties in with his statement that he had not updated his address with the Immigration Department until recently, ie after he was informed about the outcome of his leave application by the Immigration Department. As a result of his failure to inform the Court of his change of address the Order and Form CALL-1 were sent to the Sau Mau Ping address and he did not receive them. As was held by the Court of Appeal in Karamjit Singh[2] and Re Hasmi Rizwan Imran[3], it is the applicant’s obligation to keep the court informed of his means of contact. If he does not, he has to bear the consequence which his failure brings. The Applicant has no reasonable explanation for the delay.

Prospect of success of the intended appeal

7.  Despite clear directions requiring him to put forward the grounds of his intended appeal, the Applicant did not do so. In the rest of his statement, he explained why he did not request for an oral hearing and made some complaints about lack of legal and language assistance. Treating these as his grounds of appeal, the Court’s observation is as follows.

8.  The Applicant explained that he did not request an oral hearing because he was not aware if he must do so and had no legal support when he filed the Form 86. His explanation begs belief. He was specifically asked by the court staff if he request an oral hearing and it is noted that he replied in the negative. In the circumstances, the natural consequence is that it would be a matter of discretion for the Court to decide if an oral hearing is appropriate. As explained in paragraph 2 of the Form CALL-1, having considered the nature of the leave application and issues raised, the 2021 Notice of Decision issued by the Director of Immigration (the “Director”), the papers, and all the circumstances, the Court was of the view that his leave application may be justly determined on paper without an oral hearing; and it proceeded accordingly.

9.  He complains that he was not provided the chance of appeal to the Torture Claims Appeal Board. The subject matter at issue is the Director’s decision in the 2021 Notice refusing his application for making a subsequent claim. Under the non-refoulement regime, there is no right of appeal to the Board in relation to a refusal by the Director of an application to file a subsequent claim. Hence, the Applicant could only seek a judicial review of the Director’s decision in the 2021 Notice.

10.  Next, he complains that he was not provided with legal representation and language assistance in processing his leave application because the Duty Lawyer Service which then represented him was of the view that “there are no merits for appeal”. In Re Zafar Muazam[4], Re Zunariyah[5], Re Zahid Abbas[6], Re Tariq Farhan[7], and Re Lopchan Subash[8], the Court of Appeal held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar[9] nor the judgment of FB v. Director of Immigration[10] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings. The real question is whether the claimant is prejudiced for want of legal and language assistance.

11.  The Applicant was provided with legal assistance and interpretation service in his prior application for non-refoulement protection, which he failed. He was also provided with legal assistance and language assistance in preparing his application for filing a subsequent claim. He is no stranger to the proceedings having gone through the two tier decision process in his prior claim and now the one tier process in his application to file a subsequent claim. He had all the benefits that legal representation and language assistance could have provided him in those three sets of proceedings. In the present leave application, he had provided all the materials he wished to present to this Court. He specifically did not find it necessary to ask for an oral hearing and to seek this Court’s assistance. There is nothing to suggest he is prejudiced in the present application for want of legal and language assistance. More importantly, even according to him, his own lawyer advised him there are no merits in his intended appeal (meaning judicial review). There is, of course, all the more justification in not incurring public funds to provide him with legal representation due to lack of merits.

12.  He now submits he is deprived of his basic right as a litigant to be informed of his legal rights and to be duly informed of all information and that even now the decision of the Court (meaning the Form CALL-1) had never been read or translated to him in his own language. His submission is founded on his assumption that all foreign litigants are entitled to free language assistance in the processing of his litigation. As explained above, this is not the law. Litigants are of course entitled to process their litigation and be informed of the outcome in either of the two official languages of Hong Kong, but not in any foreign language of the litigant. It was his choice to come to Hong Kong in which Punjabi is not an official language. He has to suffer the inconvenience of his own language disability and arrange for his own interpretation service. He may seek assistance from his Indian community or from the Pakistani community or even Bangladeshi community in which Punjabi is used. Furthermore, even if the Form CALL-1 were explained to him in Punjabi, it could not change the decision which was made.

13.  There is no substance in his submissions as grounds of appeal.

Conclusion

14.  Despite the Court is ready and willing to indulge for his short delay, the Applicant’s explanation is not a reasonable one. Also, he has advanced no grounds of appeal which has prospect of success. For these reasons, his application for extension of time to appeal is refused.