RE LAKHWINDERSINGH

HCAL 517/2019

[2022] HKCFI 2743

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 517 OF 2019

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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 27 June 2022 for extension of time to appeal the order of this Court dated 12 April 2022 (the “Order”) refusing his application for leave to apply for judicial review (the “leave application”).

2.  Under Order 53, rule 3(4) of the Rules of the High Court, where an application for leave to apply for judicial review 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. By 27 June 2022, 76 days lapsed since the date of the Order. The time to appeal has expired. The application is 62 days out of time. The delay is substantial in the context of a 14-days period for appeal.

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 delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

Length of the delay and reasons for delay

4.  In his affirmation filed in support of his application, the Applicant attributed the delay in appealing by asserting that he never received the Order. He said he was only informed by an immigration officer on his routine reporting that his leave application had been dismissed. He asked the Court to provide documentary evidence to show that the Order had been delivered to him successfully.

5.  According to the Court record, the Order and Form Call-1 were issued to him on 12 April 2022 by post to his address in Yu Chau Street provided by him in his Form 86. The court staff are under very strict instructions to ensure that court orders are posted on the date the orders are issued. The delivery service of Hong Kong Post is usually very reliable. In the normal course of event, the Order must have been delivered to his address and received by him. The Applicant’s demand for the Court to prove successful delivery to him is unwarranted.

6.  The Court noted that the address the Applicant gave in his Summons is a different address at Pang Ching Street. Obviously, he did not receive the Order because he did not update the Court with his change of address. To assist him in presenting a proper case, this Court gave him directions on 14 July 2022 to file a statement stating:

(a)  all his residential addresses since 22 February 2019 when he made the leave application;

(b)  the date of change of address thereafter, exhibiting supporting documentary evidence, if any;

(c)  the date of reporting the change to the Immigration Department;

(d)  the date of reporting the change to the High Court; and

(e)  grounds of the proposed appeal.

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 above directions have been complied with.

7.  On 28 July 2022, the Applicant delivered his statement confirming that he lived at the Yu Chau Street address when he made the leave application, but he moved out of that address on 20 February 2021. He is now living at the Pang Ching Street address. He had reported his change of address to the Immigration Department on more than three occasions, namely in late December 2021, February 2022 and March 2022. He was not aware of the need to inform the High Court of his change of address. He had informed the Immigration Department about his leave application. He thought the Immigration Department was required to update his information with the Court. He asked for the Court’s forgiveness for his mistake.

8.  It is obvious that what he had told the Court in his supporting affirmation is just half-truth. He had not received the Order because he had moved without informing the Court of his change of address. It was his happy assumption that the Immigration Department will update his address with the Court for him because he had informed the department of his leave application.

9.  In Karamjit Singh[2], the Court of Appeal said:

“As we have said before, it is common sense that if a litigant or a claimant does not notify the authority (be it the Immigration Department, the board, or the court) in his change of address, there would be delay in communication. If he does not do so, he should arrange for timely transmission of mail from his old address to his new address. It is the duty of a litigant/claimant to give the authority an address to which correspondence or notice can come to his attention in timely manner. The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant/claimant, see: Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims Appeal Board [2018] HKCA 82; and Re Saqlain Muhammad [2018] HKCA 346. That said, however, we note that the delay in this case was very short, being only some 6 days. In such situations, the board should generally have regard to the merits of the case as disclosed by the available material, rather than simply dismissing the application for lateness.”

Thus, it is the Applicant’s duty to report his change of address to the Court. If he did not, he has to bear the consequence of his neglect. Hence, there is no valid explanation for the delay.

Grounds of appeal

10.  In paragraphs 13 to 17 of his supporting affirmation, the Applicant advanced one ground of appeal based on procedural unfairness. The contents in these paragraphs are repetitive. In essence, he claimed that despite being aware of his language disability, the Court made no arrangement to enable him to understand the content of the judgment, ie the Form Call-1, thereby depriving him of the right to seek further avenues of appeal. He requested for a translation of the Form Call-1, and a hearing for the judgment to be read and interpreted to him. He also asked to be given a reasonable time to respond. It is immediately apparent that his complaints are all directed at post-judgment events. The complaints have no bearing on the making of the decision in the Form Call-1. There is no substance in his ground of appeal.

11.  It is a well settled legal principle that a claimant does not have absolute right to free language assistance at all stages of the proceedings. In Karamjit Singh, the Court of Appeal agreed with the Court of First Instance that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time an applicant desired or required. It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English. In the circumstances, he has to live with or cope with his language disability. He cannot expect to have the luxury of any documents to be fully translated into his first language for his benefit as and when he requires. He has to find assistance himself from among his friends and his ethnic community. Indeed, the Applicant was able to file an adequately well written affirmation in English himself. His suggestion is an ideal which this host country is not prepared to afford having regard to its own resources, commitments and priority. But that does not mean the high standard of fairness has been compromised.

12.  He also complained about procedural unfairness in that the Court and authorities did not exercise caution and diligence in handling his case as he is a self-represented litigant. He did not give particulars of the Court’s or authorities’ failures or breaches of obligation. In Re Zafar Muazam[3], Re Zunariyah[4], Re Zahid Abbas[5], Re Tariq Farhan[6], and Re Lopchan Subash[7], the Court of Appeal held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar.[8] nor the judgment of FB v. Director of Immigration[9] 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 Applicant was legal represented up to the conclusion of the screening interview, but not at the appeal before the Board. The real question is whether the claimant is prejudiced for want of legal and language assistance.

13.  The Applicant had the benefit of legal representation in presenting his case to the Director. All the benefits that legal representation could have afforded him were contained in their written submissions, non-refoulement claim form and answers in the screening interview given under legal advice. All these had been presented to the Director, which were then presented to the Board. Despite he was not legally represented at the oral hearing before the Board, all the benefits which legal representation could have afforded them were before the Board. Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation in the process before the Board. The Applicant suffered no prejudice due to lack of legal representation before the Board.

14.  The other part of his supporting affirmation is about explanation for the delay. Despite having been further invited to provide grounds of appeal, the Applicant did not do so. There is no substance in his grounds of appeal.

Prospect of success of the intended appeal

15.  On the basis of the conclusion reached in the above section, the intended appeal has no prospect of success. However, for the benefit of the unrepresented Applicant, the Court looked further to other possible grounds, though not argued by the Applicant. The ultimate subject matter which the Applicant sought to challenge in the intended judicial review is the finding of the Board in its 2^nd Decision in which the Board refused the Applicant’s late filing of the notice of appeal against the Director of Immigration’s 2^nd Notice rejecting his claim to non-refoulement protection under BOR 2 Risk ground. The only way the Court could assess the prospect of success of his intended appeal is to re-examine the 2^nd Decision afresh. In an application for leave to apply for judicial review, an applicant may only challenge the Board’s finding on the grounds that it was made as result of errors of law, procedural unfairness and that the Decision was irrational. The finding of the Board in its 2^nd Decision is summarized in paragraphs 20 to 25 of the Form Call-1. The grounds of his application for judicial review are set out in paragraph 27 of the Form Call-1. The reasons for the Court’s decision are set out in paragraphs 28 to 32. Given the limited scope in which an applicant may challenge the finding of the Board in a judicial review and having rigorously re-examined the 2^nd Notice, the 2^nd Decision and Form Call-1 with anxious scrutiny, I am not satisfied that there is any prospect of success in the Applicant’s intended judicial review.

Prejudice to the respondent

16.  The prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed in the absence of a properly formulated ground of appeal with some prospect of success is obvious. It is an abuse of legal process and would encourage other claimants to indulge in such abuse. It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court. It would render it difficult for the Director of Immigration to perform his duty of maintaining immigration control. Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment. It may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

17.  In summary, there is no valid explanation for a substantial delay of two months. Both his ground of appeal and intended judicial review has no prospect of success. It is an abuse of process to challenge a decision without proper and good ground of appeal and which is bound to fail when it is already out of time. To allow such a challenge to proceed would encourage other claimants to indulge in such abuse and create prejudice to the intended respondent and to the administration. For all these reasons, the application for extension of time to appeal is refused.