AJ v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 165/2016

[2021] HKCFI 3007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 165 OF 2016

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D E C I S I O N

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I. INTRODUCTION

1.  This is an application by summons filed on 30 July 2021 (“Summons”) by the applicant (“AT”) for extension of time to appeal against my judgment handed down 25 January 2017 (“Reasoned Judgment”) refusing to extend time for him to seek leave to apply for judicial review (and hence dismissing his application for leave to judicial review). The aforesaid order made under the Reasoned Judgment with no order as to costs was sealed/filed on 25 January 2017 (“Order”).

2.  AT’s intended judicial review was against the decision of the Director of Immigration (“DOI”) made on 26 February 2015 rejecting his non-refoulement claim (“DOI Decision”), and against the decision by a member of the Torture Claim Appeal Board (“Board”) / Adjudicator of the Non-refoulement Claims Petition Office made on 30 May 2016 dismissing AT’s petition and confirming the DOI Decision (“Adjudicator Decision”).

3.  AT issued his application for leave to apply for judicial review pursuant to Form 86 filed on 13 September 2016 (“Form 86”), which was outside 3 months of the Adjudicator Decision.

II.  SUMMONS

4.  The Summons was supported by AT’s affirmation filed on 30 July 2021 (“2^nd Aff”), which stated as follows:

“Affirmation for leave to apply for time extension for my out of time application for notice of appeal against the order of court on 25-Jan-2017. I did not received any letter of Judgment from court unless [until] my immigration officer told me do so. The [Then] I approached to court search file to recover my document because I do not know English. Attached exhibit “A””

Exhibit “A” referred to in the 2^nd Aff was the Reasoned Judgment.

5.  Both the Summons and the 2^nd Aff gave AT’s address at a unit in Block 14, Locwood Court, Kingswood Villas, No 1 Tin Shui Wai Road, Tin Shui Wai, Yuen Long, New Territories (“TSW Address”).

6.  On 5 August 2021, this court granted inter alia the following written directions to AT, the DOI as the putative 1^st respondent and the Board as the putative 2^nd respondent (“5/8/21 Directions”) in relation to the Summons:

(a)  AT shall on or before 31 August 2021 lodge with court 1 set of written submissions in support of the Summons and serve the same on the party or parties who had been served with the Summons;

(b)  each of the party or parties who had been served with the Summons might within 14 days thereafter lodge with court 1 set of written submissions and serve the same on AT, and, if necessary, search the court file in these proceedings;

(c)  only in the event as stated in (b) above might AT lodge with court 1 set of written submissions in reply and serve 1 set of such written submissions in reply on the party or parties who had been served with the Summons within 7 days thereafter;

(d)  written submissions must be succinct and precise, and not exceed 5 pages (or 2 pages in case of submissions in reply) (all footnotes and appendices included), legibly printed in not less than 14 font size, or alternatively legibly written, with 1½ line spacing on A4 paper (single side only);

(e)  no application bundle needed to be lodged/served, and the court would refer to the court file;

(f)  subject to the above, no further document or written submissions shall be lodged without leave of the court, and any document or submissions lodged in non-compliance would not be considered;

(g)  unless parties lodged and served their respective written submissions on or before the stipulated deadline, the relevant party shall be deemed to have abandoned his/her/its right to rely on written submissions, and the matter would be determined by the court based on the available materials without further notice;

(h)  the court would decide whether to determine the application on paper, and if it so decide, it would proceed to do so without further notice, or alternatively would fix an oral hearing.

7.  On 16 August 2021, the Department of Justice (“DoJ”) filed Notice to Act on behalf of DOI as the putative 1^st respondent.

8.  On 23 August 2021, AT lodged written submissions pursuant to the 5/8/21 Directions (“1^st Submissions”), which stated inter alia as follows:

“3. I now understand that my appeal was made out of time. I did not received any Judgment or any letter to the court. After that I went to the court and file search then I understand my case was refused by the court. I asked around if there was a deadline in lodging the appeal at the court. I had help in my previous leave to apply for judicial review but that friend told me the case could no go forward. It was not until I kept asking around that I knew I could seek appeal against the decision. However, by then I have already passed the 14 days appeal deadline.

4. I sincerely apologise for the delay and the inconvenience caused. However, I wish the court can give me the benefit of the doubt because I have no financial resources to get proper help, nor do I understand English. It is obvious that I do not have any understanding with regards to the court proceeding.”

9.  Paragraph 5 of the 1^st Submissions stated inter alia that “I can provide further ground of appeal if the court requires. At the moment I am explaining the reasons for delay as this written submission in support of the Summons” (“Paragraph 5”).

10.  On 31 August 2021, the Board wrote to the court to seek copy of the Summons and AT’s written submissions (if any). On 3 September 2021, this court sent copies of the Summons and the 1^st Submissions to the Board.

11.  On 3 September 2021, this court granted inter alia the following written directions to AT, the DOI as the putative 1^st respondent and the Board as the putative 2^nd respondent (“3/9/21 Directions”):

(a)  this court did not understand Paragraph 5 because the 5/8/21 Directions in paragraph 6(a) above permitted AT to lodge 1 set of written submissions in support of the Summons irrespective of contents and did not allow AT to lodge written submissions by stages or by subjects;

(b)  if AT had any further submissions as to whatever contents in support of the Summons, AT shall on or before 15 September 2021 lodge with court 1 set of such further submissions and serve the same on the party or parties who had been served with the Summons;

(c)  there be extension of time until 14 days thereafter for each of the party or parties who had been served with the Summons to comply with the directions in paragraph 6(b) above;

(d)  only in the event as stated in (c) above, ie any of the party or parties who had been served with the Summons had served on AT written submissions, might AT lodge with court 1 set of written submissions in reply and serve 1 set of such written submissions in reply on the party or parties who had been served with the Summons within 7 days thereafter;

(e)  written submissions must be succinct and precise, and not exceed 4 pages (or 2 pages in case of submissions in reply) (all footnotes and appendices included), legibly printed in not less than 14 font size, or alternatively legibly written, with 1½ line spacing on A4 paper (single side only);

(f)  no application bundle needed to be lodged/served, and the court would refer to the court file;

(g)  subject to the above, no further document or written submissions shall be lodged without leave of the court, and any document or submissions lodged in non-compliance would not be considered;

(h)  unless parties lodged and served their respective written submissions on or before the stipulated deadline, the relevant party shall be deemed to have abandoned his/her/its right to rely on written submissions, and the matter would be determined by the court based on the available materials without further notice;

(i)  the court would decide whether to determine the application on paper, and if it so decide, it would proceed to do so without further notice, or alternatively would fix an oral hearing.

12.  The 3/9/21 Directions were served on AT by post to the TSW Address on 6 September 2021. The fact AT lodged the 1^st Submissions pursuant to the 5/8/21 Directions sent to him by post to the TSW Address showed that AT was able to receive correspondence by post at that address.

13.  On 7 September 2021, the DoJ wrote to inform the court that neither the DOI nor the DoJ had received the 1^st Submissions from AT, and applied for copy of the same.

14.  On 10 September 2021, this court by written directions granted leave for the DOI to search the filed documents on the court file in the present proceedings, and sent copy of the 1^st Submissions to the DoJ.

15.  No further written submissions were received from AT on or before 15 September 2021 or at all. The DOI (or the DoJ on behalf of the DOI) did not lodge any written submissions. The Board wrote to the court on 4 October 2021 to say it intended to adopt a neutral stance, and would abide by the decision/order of the court.

III.  LEGAL PRINCIPLES

16.  The Court of Final Appeal held there is no need for leave to appeal to the Court of Appeal in respect of a refusal to extend time for applying for leave to judicial review.[1] However, AT did not appeal within the 14-day time limit (see Order 53 rule 3(4) of the Rules of the High Court (“RHC”)). Under Order 59 rule 15 of the RHC, this court can extend time to appeal whether before or after the expiration of the 14-day time limit.[2]

17.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to (a) the length of the delay, (b) the reasons for the delay, (c) the prospect of success of the intended appeal, and (d) the prejudice to the respondent if extension of time were granted.[3]

18.  Where the delay is substantial and not wholly excusable, the applicant must show a real prospect of success on the merits, and not merely a reasonable prospect of success.[4] The prospect of success of the intended appeal is important as the court will not grant time extension for a hopeless appeal to be pursued.[5]

19.  The general approach in dealing with non-refoulement claims on appeal is set out in Nupur Mst v Director of Immigration,[6] Chy MD Fayej Ahamad v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office & anor,[7] and Halim Abdul v Kay Ransome Esq & anor,[8] which I adopt but shall not repeat here.

IV.  DISCUSSION

20.  AT being holder of recognizance no RBxx/xxxx/xx (CZ) gave and signed a written letter of authorisation dated 13 September 2016 to the Registrar, High Court authorising NR to issue and/or file Form 86 and AT’s affirmation on his behalf (“1^st Aff”). AT’s recognizance paper gave his address at “4/F, D.D.122, Lot 142, Tong Yan San Tsuen, Ping Shan, Yuen Long”, New Territories (“TYST Address”).

21.  When Form 86 was filed on 13 September 2016, AT was detained at Castle Peak Bay Immigration Centre, 84 Castle Peak Road, Castle Peak Bay, Tuen Mun, New Territories (“CPB ImmC”). Both Form 86 and the 1^st Aff gave AT’s address as the CPB ImmC.

22.  On 5 October 2016, Li J by his clerk wrote to CPB ImmC to enquire whether AT (a) was still in the DOI’s custody and/or (b) had applied for legal aid.

23.  On 9 October 2016, the DOI replied by letter that AT was not detained at CPB ImmC, and that a letter was received from the Legal Aid Department (“LAD”) on 29 August 2016 requesting information as AT “had applied for legal aid for judicial review regarding the non refoulement claim. However, no further information was received from the [LAD] whether legal aid was granted to subject or not” (“DOI Letter”).

24.  On 1 December 2016, Li J by his clerk wrote to the Director of Legal Aid (“DLA”) to enquire (a) whether AT had applied for legal aid, and (b) the outcome of such application (if any).

25.  On 5 December 2016, the DLA replied by memo that AT’s application for legal aid in respect of the judicial review had been refused.

26.  In Form 86, AT did not ask for any oral hearing of his application for leave to apply for judicial review. Having considered all the circumstances, this court considered it was appropriate to deal with the application without an oral hearing, and the Reasoned Judgment was handed down on 25 January 2017 refusing to extend time for AT to seek leave to apply for judicial review (and hence dismissing his application for leave to judicial review).

27.  As at 25 January 2017, the only addresses of AT made known to the court were the CPB ImmC (but the DOI by the DOI Letter had informed the court that latest by 9 October 2016 AT was no longer detained thereat), and the TYST Address. On the same day, ie 25 January 2017, this court posted the Judgment, the Order and a Call 1 Form (collectively, “Documents”) to AT at the CBP ImmC and the TYST Address.

28.  The Documents posted to AT at the CPB ImmC were returned to the court with a handwritten remark on the envelop “Released: 24-9-16”, which was consistent with the DOI Letter that AT was no longer detained at the CPB ImmC latest by 9 October 2016.

29.  On 14 February 2017, the Documents posted to AT at the TYST Address were returned to the court for the reason “Incomplete Address” as noted on the envelop.

30.  AT was therefore correct in saying in the 2^nd Aff that he did not receive the Documents. But, in my view, that did not excuse the delay of more than 4 years in making the present application by the Summons for extension of time to appeal.

31.  In Form 86 and the 1^st Aff, AT put forward the CPB ImmC as his address. Even though AT was released on 24 September 2016 (or at least before 9 October 2016), he never informed the court his residential or correspondence address after his release from detention.

32.  AT gave the TYST Address in his recognizance paper, but that was an incomplete address.

33.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner. It is also the litigant’s responsibility to keep his address in the court’s record up-to-date.[9] The consequence of any delay or failure occasioned by the ineffectiveness of an incorrect (or no longer correct) and/or incomplete address would fall on the shoulder of the litigant.[10] In my view, AT had not provided reasonable explanation for his delay in bringing the intended appeal.

34.  Further, although AT issued Form 86 on 13 September 2016 and he had been released from detention (at the latest) on or before 9 October 2016, he did not make timely enquiry with the court to find out about progress or outcome of his application by Form 86 for extension of time to seek leave to apply for judicial review.

35.  According to the 2^nd Aff, he did not do anything until he was informed by the immigration officer. But AT did not say when exactly he was informed by the immigration officer. The 1^st Submissions stated that when AT found out he checked with the court and discovered the Reasoned Judgment. He did not say when he checked with the court, but the copy Reasoned Judgment produced as exhibit “A” to the 2^nd Aff had a date “4/10/2019” (“Date”) on the 1^st page with a stamped notation “Restriction on removal of documents (The Rules of the High Court, Order 63 Rule 9)” (“Notation”). Order 63 rule 9 of the RHC provides that “[no] documents filed in or in the custody of the Registry of the High Court shall be taken out of the Registry without the leave of the Court”.

36.  AT’s admissions that “I approached to court search file to recover my document” in the 2^nd Aff, and that “I went to court and file search the I understand my case was refused by the court” in the 1^st Submissions, when considered together with the Date and Notation, suggested that AT searched the court file in 2019 and realised this court refused to extend time for him to apply for judicial review (and hence dismissed his application by Form 86).

37.  In the 1^st Submissions, AT claimed he asked around about appeal, but it was a while before he learned he could appeal against the Order, and “by then I have already passed the 14 days appeal deadline”. But AT did not explain why he did not approach the court directly to ask when or how to appeal against the Order, and he did not say when he learned he could appeal against the Order albeit out of time.

38.  In my view, there was no good or sufficient reason for the inordinate delay of over 4 years since the Reasoned Judgment was handed down, or more than 1½ years since the Date.

39.  As for the merits of the intended appeal, AT should not have reserved his contentions on the merits of his intended appeal under Paragraph 5. Nevertheless, this court granted further opportunity for AT to lodge further submissions. But AT did not avail himself of such opportunity on or before 15 September 2021 or at all. In short, AT did not put forward any grounds to show how this court erred in the Reasoned Judgment and/or in granting the Order. The reasons for refusing extension of time for AT to seek leave to apply for judicial review had been set out in the Reasoned Judgment, and AT did not advance any grounds for the intended appeal.

40.  Further, since the Reasoned Judgment was handed down, the Court of Appeal in Re Moshin Ali held that the decision of the DOI is not susceptible to judicial review if the applicant has appealed/petitioned to the Board from such decision.[11] There was plainly no merit in AT’s application for extension of time to seek leave to apply for judicial review against the DOI Decision.

41.  I find AT’s intended appeal unarguable and without merits, and it would be futile to extend time to appeal.

42.  As for prejudice to the putative respondents, in the public law field it is essential that the courts should scrutinise with care any delay whether in making an application for judicial review or in appealing against a decision on such application, and unless a disciplined approach is taken, there is real risk that the public administration may be disrupted and policies/decisions put into uncertainty. The observations by G Lam J in Re Thomas Lai Application for Leave to Apply for Judicial Review[12] also has resonance in relation to a request for time extension to appeal against a decision on application for leave to apply for judicial review.

43.  Given the inordinate delay for which there was no justifiable reason, and the lack of merits in respect of the intended appeal, I have decided it is appropriate to deal with the matter on paper without a hearing to avoid further abuse and delay.

V.  CONCLUSION

44.  Accordingly, I refuse AT’s application for leave to appeal out of time, and the Summons is dismissed with no order as to costs.