RE WEERASIRI NARAYANAGE WIJERATHNA

CAMP 509/2022, [2024] HKCA 260

On appeal from [2022] HKCFI 669

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 509 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 424/2019)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an application for extension of time to appeal against the decision of Campbell-Moffat J (“the Judge”) dated 16 November 2022 refusing to extend time for the applicant to appeal against her decision dated 9 March 2022 refusing to extend time for the applicant to apply for leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 23 February 2017 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 14 January 2015 rejecting the applicant’s non-refoulement claim (“the Director’s 1^st Decision”).

Background

2.  The applicant is a national of Sri Lanka.  He entered Hong Kong illegally on 16 September 2007, and was arrested by the police on the same day.  On 27 September 2007, he raised a torture claim under the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT Claim”).  The applicant’s CAT Claim was treated as withdrawn by the Director on 25 February 2014, and he did not seek to re-open it.

3.  On 19 March 2014, the applicant lodged a non-refoulement claim, which was assessed on grounds other than the torture risk^[1].

4.  The applicant’s claim was based on a fear of being killed or harmed by members of the Liberation Tigers of Tamil Eelam, the People’s Alliance (“the PA”) and the Sri Lankan government.  The details of the applicant’s claim have been summarised by the Judge at [4] to [6] of her decision (“the CALL-1 Form”)[2].

5.  By the Director’s 1^st Decision, the Director decided against the applicant’s claim.  The Director’s 1^st Decision covered the persecution risk[3] and the BOR 3 risk[4].

6.  By a letter from the Director dated 31 March 2017, the applicant was invited to submit additional facts, if any, for the assessment of his non-refoulement claim under the BOR 2 risk[5].  As the applicant did not respond to this letter, the Director proceeded to assess his claim on the BOR 2 risk based on the documents and evidence already filed.  By the decision dated 20 April 2017, the Director decided against the applicant’s claim on the BOR 2 risk (“the Director’s 2^nd Decision”).  

7.  The applicant appealed to the Board against the Director’s 1^st Decision (but not the Director’s 2^nd Decision).  After a hearing on 12 October 2015, the Board dismissed the applicant’s appeal by its Decision dated 23 February 2017.  The Board found that subsequent material events have taken place during the 8 years since he had left Sri Lanka, such as the PA losing its position as the ruling party, which meant that the applicant would not face a real risk of harm if he returned to Sri Lanka.  

The Judge’s decision

8.  The applicant filed a Form 86 on 14 February 2019 out of time, seeking to judicially review the Board’s Decision, claiming that the Board’s “decision to reject [his] claim [was] unjust and unfair” because he was unable to submit “important documents in support” by reason of his “various detention at C.I.C. and Pik Uk Prison”.  In his supporting affirmation, the applicant repeated the unfairness of the Board’s Decision, as he was being detained at the Castle Peak Bay Immigration Centre (“the CIC”) and Pik Uk Prison (“PU Prison”) and was therefore unable to provide to the Board documents in support of his non-refoulement claim.

9.  After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to extend time for the applicant to apply for leave to apply for judicial review.  The Judge gave the following reasons at [7] to [11] of the CALL‑1 Form:

“7.  In accordance with Order 53 rule 3, the Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review.  This was dated 14 February 2019.  Under Order 53 rule 4 an application for judicial review shall be made promptly and in any event within three months from the date when the grounds for the application first arose.  Where the relief sought is a review of a case tried in a lower court, the relevant date from which time runs is the date of that decision. In this case time ran from the date of the ruling of the TCAB which was 23 February 2017, which expired on 23 May 2017.  The Notice of Decision from the TCAB was sent to the Applicant’s registered address provided by him at the Hearing but it is noted that the date of the Decision by the TCAB appears to be some 14 months after the date of the hearing and may account for an intervening change of address.  Nevertheless, the Decision would also have been sent to the Immigration Department and it is presumed that the Immigration Department made the applicant aware of the status of his claim at a subsequent sign-in under his recognizance.  It is noted that his Form 86 dated 14 February 2019 shows Castle Peak Bay Immigration Centre (CIC) as his address once more.

8.  The Applicant has submitted no proper explanation for his delay and has not sought leave for an extension of time.  From his affirmation in support he maintains:

‘The Torture Claim Appeal Board simply ignored the fact that it was due of [sic] the detentions, first at Pik Uk Prison, and then at Castle Peak Bay Immigration Centre that I was in fact unable to submit important documents in support of my non-refoulement claim. Therefore the decision to reject my claim was reached unfairly and unjustly.’

9.  An application for extension of time under Order 53 rule 4 is a discrete application quite separate from an application under Order 53 rule 3.  I have nevertheless considered the principles[6] applicable to granting such an extension if an application had been made and those are:

1)  the length of delay;

2)  the reasons for delay;

3)  the prospects of success in the intended appeal, and

4)  the prejudice to the putative respondent if extension of time were granted.

10.  In this case the applicant was late by approximately 631 days and has not offered any explanation for this delay.  His reference to Pik Uk and incarceration in CIC appears to pre-date his TCAB hearing.  There is no mention as to why he has not been able to progress his claim since that date or how he came to know that his claim was rejected.  In view of that, he must satisfy the Court that there is a reasonable prospect of success in his intended leave application and that there will be no prejudice to the putative respondent before an extension of time will be granted.  The Director considered his case in considerable detail and gave him more than one opportunity to make his case where parts of his evidence appeared to be in conflict.  The Adjudicator placed the applicant’s case at its highest, but nevertheless went on to confirm the Director’s Decision.  This may be because the facts relied upon by the appellant had shifted and because the basis of his desire not to return to Sri Lanka appeared to be for personal and social reasons [7]. There is no reason at all before the Court as to why an extension of time for leave to apply for judicial review should be given.  The factual basis for his claim was extremely weak and has grown weaker over time.  I can find no merit in it whatsoever.  There were no proper grounds provided for leave to judicially review the Decision of the Adjudicator.  The applicant simply asks for a re-hearing in order to provide documentation.  The underlying facts of his claim do not appear to require any such documentation.  The applicant’s claim as explained above is not reasonably arguable, I can find no error of law or procedure in the Decision made and he does not have a realistic prospect of success.

11.  This application is dismissed as being out of time and leave for extension of time is refused.”

The present application for extension of time to appeal

10.  The applicant’s address at the time he filed the Form 86 was at the CIC.  On 15 February 2019 (on day after the filing of the Form 86), the applicant wrote to the court from the CIC, requesting a copy of the Form 86.  He was told, in the court’s letter of reply dated 22 February 2019, that as he was being detained at the CIC, a copy of the Form 86 could not be provided to him by post, but that he may send a duly authorised representative to collect the same.

11.  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order was sent by post to the applicant at the CIC on 9 March 2022, which was however returned with a note from the CIC indicating that the applicant was no longer being detained there.  The applicant’s date of release from the CIC was unknown, nor did he inform the court of such date.  Upon the court’s enquiry, the Immigration Department informed that the applicant’s reported address was at Nai Wai, Tuen Mun (“the Address”). Another copy of the CALL-1 Form was therefore sent to the applicant at the Address by a letter dated 15 March 2022, but it was again returned and marked “refused”.

12.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 9 March 2022.

13.  Subsequently, the applicant by letters to the court dated 5 July and 2 August 2022 informed that he was imprisoned (period unknown) and therefore he was unable to “appear in the court on March 22-03-2022” (this alleged hearing date pre-dated the applicant’s letters, and in any event no such hearing was fixed on that day), and that after serving his sentence, he was transferred to the CIC on 9 June 2022.  He further requested a copy of the CALL-1 Form.  The court by its letter dated 5 August 2022 enclosed another copy of the CALL-1 Form which was sent to the applicant at the CIC, and it was not returned undelivered. 

14.  The applicant thereafter took out a summons in the Court of First Instance on 24 October 2022 seeking extension of time to appeal, in which his address was stated to be the CIC.  He did not file any affirmation in support.  By a warrant dated 4 November 2022, the applicant was brought from detention at the CIC before the Judge on 16 November 2022 for the hearing of the summons, during which he appeared in person and was assisted by an interpreter.

15.  The applicant’s application to appeal out of time was dismissed by the Judge on 16 November 2022[6].

16.  By a summons filed on 2 December 2022, the applicant renewed his application for an extension of time to appeal before this court.  In the summons, the applicant sought an extension of time to appeal against the decision given by the Judge on “16 Nov 22”, being the Judge’s refusal to grant an extension of time for him to appeal against her decision dated 9 March 2022.  Although in his summons the applicant purported to appeal against the decision of the Judge dated 16 November 2022, we shall treat it as a renewed application for an extension of time to appeal against the substantive decision of the Judge dated 9 March 2022, by which extension of time to apply for leave to apply for judicial review was refused.  

17.  In his supporting affirmation, the applicant stated that as he was unrepresented he was unaware of the 14-day period during which he was allowed to lodge an appeal.  He also said that he never received a copy of the CALL-1 Form and only learned of it from an immigration officer.  Finally, he contended that the Judge’s decision was reached unfairly because he was not given an opportunity to “clarify” his case.

18.  The applicant lodged his written submissions on 9 December 2022, in which he referred to the well-established principles in, inter alia, ST v Director of Immigration (sic)[7] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514 and Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.  

Discussion

19.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

20.  At the outset, we note that the initial letters sent to the applicant at the CIC and the Address were returned undelivered.  However, we also note that the letter to the CIC was returned because the applicant had been released, and he had failed to promptly update the court as to his whereabouts or his updated place of residence or correspondence.  Further, delivery of the court’s letter dated 15 March 2022 to the Address (which was sent to the applicant within the 14-day period for him to appeal) was said to have been refused.

21.  Notwithstanding the applicant’s claims that he had been serving a prison sentence, he failed to specify the exact period of such imprisonment.  It was also incumbent upon the applicant to update this court as to his updated address at which he may be contacted, and the applicant clearly failed to do so in this case in respect of his correspondence address upon his first release from the CIC.  He alone must bear the consequences of such failure. 

22.  Further, there was no explanation given by the applicant as to why the court’s letter dated 15 March 2022, which was sent to the Address (being his self-declared address on the records of the Immigration Department), was returned undelivered and marked “refused”.  Even if we were to assume that the applicant first learned of the Judge’s decision on around 5 August 2022, being the date of the court’s letter to him at the CIC which was not returned undelivered, there was a further delay of almost 3 months by him in applying on 24 October 2022 to the Judge for extension of time to appeal.  He was clearly capable of communicating with the outside world (such as the court) by way of post, notwithstanding his various periods of detention.  We therefore consider that this further delay is substantial, unexplained and unreasonable.

23.  We also do not consider the applicant’s contention of ignorance of the 14-day period by reason of his lack of legal representation as a sound reason for the delay.

24.  Accordingly, we are of the view that the applicant has proffered no reasonable excuse for the delay of over 7 months in his application to the Judge for extension of time to appeal, which was very substantial.  His present summons is therefore liable to be dismissed on this basis alone.

25.  However, in a turn of events, the applicant wrote to the court on 31 January 2023, stating that he wished to “withdraw” his “CAMP summons 509/2022” because he had “some problems” in his country and he wanted to “close all [his] legal proceedings as soon as possible”.

26.  Given the unreasonable delay and the applicant’s withdrawal application, the usual course would be for this court to dismiss the summons.  This notwithstanding, for the following reasons, we would have dismissed the summons in any event, as we do not consider there to be any merits in the intended appeal.

27.  The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

28.  The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

29.  The applicant’s complaint that he did not have an opportunity to present and clarify his case before the Judge is unfounded, as he did not request for an oral hearing of the application for leave to apply for judicial review, and in any event he was brought before the Judge at the hearing of application for extension of time to appeal, where he undoubtedly had the opportunity to make submissions.

30.  It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.  

31.  There was also no attempt by the applicant to elaborate on whether and, if so, how the trite principles referred to in his written submissions had not been applied in the in processing of his non-refoulement claim or by the Judge in reaching her decisions.

32.  For these reasons, we do not in any event see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 2 December 2022 is accordingly dismissed.