RE AMARJIT SINGH

CAMP 169/2022

[2022] HKCA 1866

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 169 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 1733/2018)

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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 DHCJ Woodcock (“the Judge”) dated 17 December 2019 refusing to grant leave to the applicant 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 13 October 2017 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 30 November 2016 (“the Director’s Decision”) refusing the applicant’s request to re-open his non-refoulement claim.

Background

2.  The applicant is a national of India. He lodged a non-refoulement claim on the basis that his life would be in danger should he return to India.

3.  In processing the applicant’s claim, on 12 August 2016, the Director served a Notice and a blank Supplementary Claim Form (“SCF”) on the applicant. By the Notice, the applicant was informed that he must return the completed SCF to the Immigration Department within 28 days.  On 2 September 2016, a written request was served by the Director on the applicant, requiring him to return the completed SCF on or before 30 September 2016, failing which his non-refoulement claim would be treated as withdrawn.

4.  Notwithstanding that reminder letters dated 6, 13 and 23 September 2016 were sent to the applicant regarding the return of the SCF, and reminding him of the consequences of failing to do so, the applicant did not return the completed SCF by the deadline of 30 September 2016.

5.  Accordingly, a Notice of Deemed Withdrawal of Non-refoulement Claim was sent to the applicant on 3 October 2016, by which he was informed that his claim may only be re-opened upon his provision of sufficient evidence that he had not been able to return the completed SCF as required due to circumstances beyond his control.

6.  By a letter dated 14 November 2016, the applicant made a request to the Director to re-open his claim on the basis that he would still be in danger should he be refouled.  The Director responded by letter on 17 November 2016, requiring the applicant to provide evidence in support of his inability / failure to return the SCF on or before 24 November 2016, which he failed to do.

7.  By the Director’s Decision, the applicant’s request to re-open his non-refoulement claim was refused by reason that he had failed to return the completed SCF and had also failed to provide any evidence in support of any circumstances beyond his control which caused his failure to return the SCF.

8.  The applicant appealed to the Board against the Director’s Decision.  In its Decision dated 13 October 2017 reached without an oral hearing, the Board set out and considered the procedural history of the matter at [1]‑[11], and eventually dismissed the applicant’s appeal for the same reasons given by the Director.  Referring to section 37ZG of the Immigration Ordinance (Cap 115), the Board affirmed the Director’s Decision.

The Judge’s decision

9.  The applicant filed a Form 86 on 23 August 2018, which was substantially out of time.  In the Form 86, the name of the proposed respondent was stated to be the “Immigration Department” and the date of the proposed judgment or decision to be reviewed was stated to be “23 February 2018”.  Given that neither the Board’s Decision nor the Director’s Decision was dated 23 February 2018, and that in the supporting affirmation filed on the same day the applicant stated that he was dissatisfied with the Board’s Decision, the Judge rightly treated the intended review as being against the Board’s Decision (see [9] of the Judge’s decision dated 17 December 2019 (“the CALL‑1 Form”[1])).

10.  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 grant leave to the applicant to apply for judicial review.  The Judge gave the following reasons in refusing to grant leave at [9] to [15] of the CALL‑1 Form:

“9.  The applicant filed a notice of application for leave to apply for judicial review on 23 August 2018.  This notice of application was filed late; it was not within three months of the date of the adjudicator’s decision (Order 53 Rule 4).  It was over 10 months late.  His notice of application does not set out any reasons for the delay as it should.  In fact, it does not acknowledge the application is late, does not seek an extension of time to file this application as it should.  His affirmation in support of his application makes no mention of the delay, does not give any reasons for the delay nor does it in fact set out any grounds to support his application.

10.  He did not in fact requested an oral hearing but in light of the lack of grounds in his notice of application I erred on the side of caution and set down his application for hearing on 15 November 2019 at 9:30am.  The court has sent a notice of hearing by registered post to the applicant’s last known address supplied to the Immigration Department by the applicant who supplied it to the court at our request.

11.  The court had to request such an address because the applicant did not supply an address with his notice of application for leave to apply for judicial review.  The Immigration Department also supplied his reported mobile phone number.  The court called that number to remind the applicant of the court hearing pending the day before but a friend of the applicant informed the court that this mobile number was not one belonging to the defendant.  The applicant was absent on the date of the hearing.  I therefore consider the application on the papers.

12.  I have considered the legal principles for granting an extension of time for judicial review, the following factors are significant such as the length of delay, the explanation given for the delay, the merits of the substantive application, the prejudice to both the respondent and the public administration and whether the application raised any questions of general public importance.

13.  The delay is significant, there is no explanation for the delay and there is no good reason for extending time.  There are no grounds put forward to support this application.  An oral hearing was set down because there were no grounds to give the applicant an opportunity to make submissions in open court and he was absent.  The application, even on review of the papers, does not raise any questions of general public importance.  Delay alone is enough to dispose of this application.

14.  In any event, I did consider the adjudicator’s decision and the reasons he rejected the applicant’s appeal/petition.  I even considered the Director’s decision and found it followed the letter of the law and the Director was justified in refusing the applicant’s request to reopen his non‑refoulement protection claim

15.  I refuse leave to apply for judicial review.”

The present application for extension of time to appeal

11.  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 17 December 2019.

12.  The applicant took out a summons in the Court of First Instance on 30 October 2020 seeking extension of time to appeal.  In his supporting affirmation filed on the same date, he claimed that he did not receive the relevant correspondence from the court, and that he was not legally represented. 

13.  The applicant’s application to appeal out of time was dismissed by DHCJ To on 21 January 2022[2]. At [6] to [11] of this decision, DHCJ To set out in detail the background to the court’s attempted communication with the applicant by post, namely that the applicant had intermittently been detained at Castle Peak Bay Immigration Centre (“the Centre”), and during the periods where he was discharged from the Centre, he had also changed his residential or correspondence address several times, with an address at Percival Street, Causeway Bay being his last known address at the time (“the Percival Street Address”).

14.  Notwithstanding that directions by DHCJ To made on 15 June 2021 (directing the applicant to inter alia set out the circumstances in which he came to know about the Judge’s order) were sent to the applicant at the Percival Street Address (and were not returned undelivered), he made no response.

15.  By a summons filed on 26 May 2022, the applicant renewed his application for an extension of time to appeal before this court, in which he stated that he is residing at yet another new address.  He merely asked this court to “extend time for [him]”, without setting out any grounds.  In his supporting affirmation, he again simply asked the court to “give [him] permission to appeal”.

16.  In his written submissions lodged on 9 June 2022, he stated that he still had a “problem” in India, but also notably that he had “no objection to [the] director or adjudicator or the High Court decision[s]”.

17.  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.

Discussion

18.  The applicant applied for leave for judicial review (an application determined by the Judge) and for extension of time to appeal (an application determined by DHCJ To) during his intermittent periods of detention at the Centre (see [3] and [7] of DHCJ To’s decision).  It was also apparent, from the background set out by DHCJ To in his decision, that notwithstanding the applicant’s numerous changes of address, the applicant failed to respond to DHCJ To’s request (in the form of directions sent to the Percival Street Address) for particulars regarding the delay in his application.

19.  There was also nothing to suggest that the applicant did not receive the CALL-1 Form and order by the Judge, which was sent to one of his known addresses and was not returned undelivered (see [8] of DHCJ To’s decision).

20.  In any event, as correctly noted by DHCJ To at [11] of his decision, it is incumbent upon the applicant to notify the court of any change of address as soon as possible, and any consequences of having failed to do so lie with him.

21.  In the circumstances, we consider that the applicant has failed to proffer any reasonable explanation or reason for his delay in lodging his intended appeal.

22.  Moreover, the 14-day period for the applicant to bring his intended appeal expired on 31 December 2019, which meant that he was around 10 months out of time when he lodged his application for extension of time in the court below.  DHCJ To refused his application on 21 January 2022, which meant that the applicant is over 3 months out of time in bringing the present renewed application before this court.  The delay is substantial and the present application should be dismissed on this basis alone.

23.  In any event, for the following reasons we do not see any merit in the intended appeal.

24.  Section 37ZG(1) of the Immigration Ordinance (Cap 115) provides that a torture claim “must be treated as withdrawn” if the applicant fails to return a completed SCF.  Section 37ZG(3) provides:

“ A torture claim treated as withdrawn under subsection (1) may be re‑opened if the person who made the claim provides sufficient evidence in writing to satisfy an immigration officer that the person—

(a) had exercised all due diligence to return a completed torture claim form as required under section 37Y(2); but

(b) failed to return a completed form as required under the section because of circumstances beyond the person’s control.”

25.  The question of whether sufficient evidence had been provided by an applicant for the purpose of re-opening the claim was a matter for the Director and, on appeal, for the Board to determine.  It is not for the Court of First Instance, still less for this court, to substitute its own opinion on that question.  See Re Mughal Zia Ur Rehman [2021] HKCA 1622 at [24].  In the present case, the applicant in fact provided no evidence whatsoever in support of his request to re-open his claim.

26.  In any event, the applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board’s Decision was said to be not in accordance with the law, procedurally unfair or Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

27.  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.

28.  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.

29.  For these reasons, we do not 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 26 May 2022 is accordingly dismissed.