CONRADO A. CASTILLO v. DIRECTOR OF IMMIGRATION

HCMP 1073/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO.1073 of 2009

(on an intended appeal from HCAL No. 45 of 2009)

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J U D G M E N T

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Hon. Yuen JA:

1.  This is an appeal out of time from Poon J’s decision refusing leave to the Applicant to apply for judicial review of the Director of Immigration’s decision refusing the Applicant’s application for change of status in order to take up employment in Hong Kong.

2.  The Director’s decision was given on 12 February 2007.  Reasons were given in the letter. 

3.  However it was not until 23 April 2009, more than 2 years later, that the Applicant issued proceedings for judicial review.  Order 53 rule 4(1) of the Rules of the High Court stipulates:

“An application for leave to apply for judicial review shall be made promptly and in any event within three months of the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made”.  (Emphasis added).

4.  The delay in this case (where the Applicant took 26 months to make an application which should have been made within 3 months at the most) is extraordinary.  In his affidavit filed on 20 May 2009, the Applicant sought to explain the delay by saying that he had sought the help of legal aid but that it was denied.  However the Applicant failed to give details as to when he applied for legal aid and when it was refused, nor what (if anything) he did about it thereafter.  Not surprisingly Poon J observed, amongst other things, that the application was “hopelessly out of time”.

5.  Poon J’s decision was made on 22 May 2009 (Friday) and sent to the Applicant on 25 May 2009 (Monday).

6.  Order 53 rule 3(4) Rules of the High Court stipulates:

“Where an application for leave 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”.

7.  Since Poon J’s order was given on 22 May 2009, the Applicant should have lodged his appeal by 5 June 2009.  The Applicant did not do so until 8 June 2009, so technically his appeal is out of time.  However I am not minded to take the slight delay into account as Poon J’s order was sent to the Applicant on 25 May 2009 and the Applicant did lodge his appeal within 14 days of that date (albeit not from the date of the order as per Order 53 rule 3(4) RHC). 

8.  Apart from the May affidavit, I have also considered the Applicant’s new affidavit filed on 9 June 2009.  In the first paragraph entitled “Appeal from Extension of Time”, he said that he was not given a chance to explain himself and to submit all the documents he had prepared to prove his qualifications and the qualifications of his church.   He said he was waiting for “the notice to submit all the necessary documents that I have prepare[d]”  but he did not receive it.  He also said that if he were given a chance to submit all the documents he could show them.  He then carried on in his affidavit to refer to the qualifications of himself and his church and proceeded to allege that the Director discriminated against his religious denomination contrary to the Basic Law.

9.  However what the Applicant failed to do in the affidavit placed before Poon J and still failed to do in the new affidavit placed before this court is to give satisfactory reasons for the gross delay of 26 months between the Director’s refusal of his application in February 2007 and the application for leave to issue judicial review in April 2009.  The Applicant advanced no grounds for suggesting that he would be given a “notice to submit documents” and in any event even in the light of Poon J’s observations on his delay, the Applicant has still not been able to offer any satisfactory explanations for it.

10.  At the hearing before me the Applicant said that the 2 years were spent in 4 applications for legal aid.  In my view that is not a satisfactory explanation for the delay.  He could easily have made the application first and tried to get legal aid afterwards.

11.  In these circumstances, the only order that can properly be made by this court is that this application for extension of time to appeal must be dismissed.