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

HCAL 1023/2017

[2020] HKCFI 2238

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1023 OF 2017

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D E C I S I O N

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Introduction

1.  This is an application dated 17 July 2020 to appeal my decision of 2 July 2020, refusing leave to apply for judicial review.  The applicant had 14 days in which to apply to appeal that decision.  He did not do so.  He now requires leave to extend time to appeal against that order.  The applicant did not attend court for the hearing and therefore I have considered the application upon the papers.

Procedural Background

2.  The applicant is a claimant under Article 3 of the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment.  He entered Hong Kong illegally from the mainland of China on 13 September 2016, through the Lok Ma Chau Control Point.  He was refused permission to land and arrested for illegally remaining and obstructing an immigration officer for which he received 15 months’ imprisonment on 9 November 2016.  He submitted a non‑refoulement (“NRF”) claim after release from prison on 28 July 2017 and was interviewed by the Director of Immigration (“the Director”) on 12 August 2017.  The Director dismissed his claim under all heads, by Notice of Decision on 16 August 2017.  He appealed that Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Ms Betty Kwan (“the Adjudicator”), heard him on 17 November 2017.  The Adjudicator refused his appeal on 24 November 2017.  

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 7 December 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.  His application for leave to apply for judicial review was refused on 2 July 2020.  He had 14 days from that date to appeal that decision which would have expired on 16 July 2020.  By way of summons dated 17 July 2020, he seeks leave to appeal out of time.

4.  An applicant does not require leave to appeal against a CFI judge’s refusal to grant leave to apply for judicial review (Order 59, rule 21(1)(g)).  The applicant may appeal as of right.  However, an applicant who wishes to appeal against a CFI judge’s refusal to grant leave to apply for judicial review, which is an interlocutory order, has to observe the time limits for appeal under Order 53, rule 3(4) of the Rules of the High Court which allows 14 days.  This is clearly set out within the Form CALL‑1 which accompanies the Order of this Court.  Time limits in judicial review are necessarily strict.  Where the applicant is out of time to appeal against a judge’s refusal to grant leave to apply for judicial review, an extension of time may be granted by a judge of the Court of First Instance under Order 59, rule 2B(6). The Court is required to consider (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of success in the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted[1].

5.  In order to obtain that leave, an application must be made promptly and it must be supported by an affirmation or affidavit deposing to any facts relied upon by the applicant and giving a full account of and explanation for the whole of the delay since time expired.  It should also indicate the Grounds of Appeal the applicant seeks to rely upon.

6.  Whilst the granting of an extension of time is entirely within the discretion of the Court, the applicant is required firstly to explain the reasons for his delay as this forms part of the consideration of whether there is good reason to allow an extension of time.  Thereafter he must show whether there is any merit in his intended appeal.  The applicant accepted he was late by just one day but that one day triggers the procedure referred to above. He gave no reason within his affidavit as to why he was late.  The Court file suggests that it was properly served upon the correct address, which is the same address the applicant uses today.  It is the duty of a litigant to not only give the Court an address to which correspondence or notice can be given but also such that it can come to his attention in a timely manner[2].  The consequences of any delay arising from failing to do so will fall upon the litigant[3].

7.  Even though the applicant was late by just one day, Order 59, rule 2B(6) is engaged and the Court is required to examine whether there is any merit in the applicant’s appeal[4].  Whether there is any such merit will depend upon well‑established legal principles[5] including the fact that the Court in judicial review is not to provide a further avenue of appeal on the merits of the underlying claim.  The question for the Court is whether any grounds truly seek to review the exercise of a judicial function and in so doing indicate a reasonable prospect of success in the intended appeal[6].  There were no grounds.

Conclusion

8.  The applicant was late by just one day but the length of any delay is not the only test to be applied.  The efficient management of the judicial process is also a function of the Court.  It has to find a balance between the rights of the individual and effective use of court time and resources.  As to the former, despite the applicant providing no grounds of appeal and failing to attend, I have considered once again both his underlying application and his appeal.  His underlying NRF claim has no merit as explained in the initial refusal of leave.  There were no grounds of review and none could be ascertained from the papers.  There was no complaint in respect of this Court as to the decision to refuse leave.  The applicant wishes the Court of Appeal to consider his NRF claim afresh.  That is not the function of the Court of Appeal in judicial review.  Having considered the length of delay, reason for the delay and underlying merits of his application, it would not be in the interest of justice to grant an extension of time in all the circumstances of this case.

9.  The applicant’s summons dated 17 July 2020 be dismissed.