RE AZAM SHER

HCAL 1704/ 2018

[2021] HKCFI 908

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND A1DMINISTRATIVE LAW LIST

NO. 1704 of 2018

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DECISION

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Background

1.  On 2 October 2019, Deputy High Court Judge Woodcock refused to give leave to the applicant to apply for judicial review (“the Court’s order”) against the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) dated 1 March 2018.  The Board in its decision upheld the decision of the Director of Immigration (“the Director”) dated 21 February 2017 rejecting the applicant’s non-refoulement claim.

2.  The Court refused the applicant’s application for reasons stated in [13-15] of its decision (Form CALL-1).  Significantly the Deputy Judge found the applicant’s claim not reasonably arguable and there is no realistic prospect of success in the applicant’s intended application for judicial review.

3.  By a summons filed on 10 February 2021, the applicant applied for extension of time to appeal against the Court’s order.  The applicant had 14 days from that order to apply to appeal to the Court of Appeal.  He did not do so.  He now requires leave to extend time to appeal against that order out of time.  The 14-day period for him to file his appeal under Order 53 rule 3(4) of the Rules of High Court ended on 16 October 2019.  He was therefore late by 1 year and 3 months with his intended appeal.

4.  In his summons, the applicant stated that he did not receive the Court’s letter “on time”.  

5.  I noted that before he took out the summons for appeal out of time, he filed another application for judicial review (HCAL 1411/2020) but subsequently wrote to the court to withdraw his application.

6.  At the hearing on 26 March 2021, he further explained that the application in HCAL 1411/2020 was made by mistake as his intention was to appeal the decision of Deputy Judge Woodcock. He confirmed his decision to withdraw his application in HCAL 1411/2020 and leave was granted accordingly.

7.  The applicant further explained that he did not know about the Deputy Judge’s decision until he was told by the officer in the Castle Peak Bay Immigration Centre (“CIC”) that his judicial review application had been decided. He then made a mistake by filing a new judicial review application causing him a further delay of 5-6 months. He said he was transferred to CIC about 10 months ago after he had served a sentence of 2 months in jail. As to his grounds of appeal, he just said he wanted to file an appeal.

Discussion

8.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted.

9.  In the present application, the applicant was late by 1 year and 3 months to appeal the decision of Deputy Judge Woodcock.  Even counting from the time he filed his judicial review application in HCAL 1411/2020 on 7 July 2020, he was still late for more than 8 months. And assuming it is true that he had served two months’ imprisonment before he was transferred to CIC, his application would be late by 6 months. The delay was very substantial.

10.  The order of Deputy Judge Woodcock was sent on 2 October 2019 to CIC, which was his last reported address. The letter to CIC was returned to court marked “already left”. After repeated attempts by court’s staff to contact the Immigration Department for the last updated address of the applicant, Deputy Judge Woodcock’s order and Call-1 form were sent to the applicant by letter to his last updated address on 21 October 2019. There is no record of non-delivery and the letter presumably reached the address. Moreover, the applicant was given recognizance and required to report to the Immigration Department regularly before he was arrested by the police. There is no reason why he would not be informed by the Department before he was arrested and sentenced to jail. Neither did the applicant explain with evidence in support of the delay for 6 months before he was sent to jail and then CIC.

11.  In any event, 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. The applicant did not update his address for correspondence with the Court.  The consequence of any delay or failure occasioned by the ineffectiveness of his reported address would fall on the shoulder of the applicant. The Court finds the delay inexcusable.  In any event, the intended appeal has no merit at all.

12.  In assessing the merit of the intended appeal, the court will have regard to the well-established legal principle for dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Assessment of evidence and evaluation of risk are primarily within the province of the Board (and the Director).  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.

13.  In the present case, the applicant failed to attend the hearing before the Board which found the applicant’s claim vague and unreliable. It was not his ground of review that the Board’s decision to determine his appeal without a hearing was unfair. Deputy Judge Woodcock considered the Board’s decision with rigorous examination and anxious scrutiny. She did not find the applicant’s claim reasonably arguable. I do not see any error in her decision. Moreover, the applicant has not put forward any arguable grounds of appeal in his documents or at the hearing.

Conclusion

14.  I cannot see any prospect of success in the intended appeal.  It would be futile to extend the time for him to appeal.  Accordingly, I refuse to grant extension of time, and the summons dated 10 February 2021 taken out by the applicant is dismissed.