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

HCAL 1823/2023

[2024] HKCFI 2052

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1823 of 2023

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the 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.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicant’s application by Form 86 filed on 11 October 2023 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board /the Non-Refoulement Claims Petition Office (the “Board”) dated 22 April 2021 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 20 May 2019 (the “Notice”). Pursuant to Order 53, rule 4(1) of the Rules of the High Court his leave application was filed 26 months late (see Paragraph 5 below).

2.  The Applicant had not requested an oral hearing. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered his application may be justly determined on paper without an oral hearing.

Discussion

3.  On 31 October 2023, by a letter addressed to the Applicant at his address in Castle Peak Bay Immigration Centre as provided by him in his Form 86, this Court invited the Applicant to file submissions. The letter was returned as he had moved without providing the Court his updated address. On 6 February 2024, a similar letter was sent to him by post to his new address in Reclamation Street as discovered from the Immigration Department. The letter was not returned but he did not respond.

4.  On 26 April 2024, this Court gave him specific directions by letter to file an affirmation or statement within 14 days of the direction stating his explanation for taking 26 months to make the leave application. The direction included a warning that unless the directions are complied with his leave application may be dismissed for want of prosecution. The letter was not returned. Again, he did not respond after a lapse of 21 days. Accordingly, an order refusing his leave application for want of prosecution was issued on 17 May 2024. Here under are the reasons.

5.  The Decision sought to be reviewed was made on 22 April 2021. It was not until 11 October 2023 that the Applicant sought judicial review of that Decision. Order 53, rule 4(1) of the Rules of the High Court provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. An application made after three months is deemed to have been made with undue delay. By 11 October 2023, his application was more than two years and two months out of time. In considering whether to grant extension of time in making a leave application, the court takes into account (i) the length of the delay; (ii) the explanation for the delay; (iii) merits in the substantive application; (iv) the balance of prejudice to the applicant and the proposed respondent if extension of time is granted; and (iv) whether the application raises questions of general public importance which are likely to have to be resolved by the courts in any event: see AW and Director of Immigration[1]. Merits is usually a very important factor. But, it was also held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[2] that where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”. The delay in this case is so substantial that in the absence of a reasonable explanation, leave may be refused on this ground alone.

6.  Despite clear indication 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. In his supporting affirmation, he only annexed a copy of the Decision but did not provide any grounds for his application. That is some evidence on which the inference that he has no arguable grounds for judicial review may be drawn and the application is an abuse of legal process. Having perused the Decision and the papers, this Court can also detect no errors of law, procedural unfairness or irrationality in the Decision.

7.  The Applicant never informed the Court about his up-to-date address since filing the Form 86. He did not respond to the Court’s letter dated 6 February 2024 inviting submission and did not respond to the Court’s specific directions by letter dated 26 April 2024 requiring explanation for the delay in filing the leave application. A satisfactory explanation is an essential requirement he has to meet before the Court will consider his late leave application. His conduct and deliberate refusal to comply with the Court’s direction evinced a lack of intention to prosecute his leave application. His conduct also resulted in delay in the processing of his leave application and therefore the non-refoulement process. His conduct is a clear abuse of legal process. For these reasons, his leave application is dismissed for want of prosecution.

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