Bhopinder Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 624/2017

[2019] HKCFI 2351

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 624 OF 2017

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BETWEEN

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Before: Hon Campbell-Moffat J in Chambers

Date of Hearing: 20 September 2019

Date of Decision: 20 September 2019

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D E C I S I O N

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Introduction

1.This is an application filed on 5 June 2019 to appeal my decision of 13 April 2018 refusing leave to apply for judicial review.  The applicant had 14 days in which to apply to appeal that decision.  He did not do so. He now requires leave to extend time to appeal against that order.  The applicant attended court with the assistance of an interpreter.

Procedural background

2.The applicant is a claimant under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  He entered Hong Kong legally on 14 March 2009 and thereafter overstayed.  He submitted a non-refoulement claim form on 31 July 2014 and was interviewed by the Director of Immigration (“the Director”) on 26 November 2014, 29 January 2015 and 28 April 2015.  The Director dismissed his claim under all heads, by Notice of Decision on 29 May 2015 and by Notice of Further Decision on 10 November 2016.  He appealed those decisions to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Yung Yiu-wing (“the Adjudicator”), heard him on 18 May 2017.  The Adjudicator refused his appeal on 31 May 2017.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 15 September 2017, which was outside of the three months’ time limit and he therefore required an extension of time before his application for leave could be considered.  He was given the benefit of the doubt and extension of time was granted on the papers.  He did not request an oral hearing for the leave application.  The matter was therefore considered on the papers.  His application for leave to apply for judicial review was refused on 13 April 2018.  He had 14 days from that date to appeal that decision which would have expired on 27 April 2018.  By way of summons filed on 5 June 2019, he seeks leave to appeal out of time.

4.An applicant does not require leave to appeal against a CFI judge’s refusal to grant leave to apply for judicial review (Order 59, rule 21(1)(g)).  The applicant may appeal as of right.  However, an applicant who wishes to appeal against a CFI judge’s refusal to grant leave to apply for judicial review, which is an interlocutory order has to observe the time limits for appeal under Order 53, rule 3(4) of the Rules of the High Court which allows 14 days.  Where the applicant is out of time to appeal against a judge’s refusal to grant leave to apply for judicial review, an extension of time may be granted by a judge of the Court of First Instance under Order 59, rule 15.  The court is required to consider (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of success in the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

5.In order to obtain that leave, an application must be made promptly and it must be supported by an affirmation or affidavit deposing to any facts relied upon by the applicant and giving a full account of and explanation for the whole of the delay since time expired.  Whilst the granting of an extension of time is entirely within the discretion of the court, the applicant is required to explain the reasons for his delay as this forms part of the consideration of whether there is good reason to allow an extension of time.  He is grossly out of time.  The Form CALL-1 was sent to the address on his Form 86, which was the Castle Peak Bay Immigration Centre (“CIC”).  On 16 May 2018, the court was informed by the Immigration Department of a new address for the applicant which was Room B, 8/F, 157 Tai Nan Street, Sham Shui Po, Kowloon.  This is not the address which the applicant gave to the court today.  A further copy of the Form CALL-1 and the Order were sent to that address on 16 May 2018.  He provides no explanation for why he did not receive this second letter.  On 24 August 2018, the applicant was arrested for possession of dangerous drugs and was detained thereafter and eventually sentenced to eight months’ imprisonment.  He was released into the custody of the Director on 4 February 2019.  The court received a letter from the applicant dated 7 February 2019, asking for a copy of the Form CALL-1 and the Order.  On that occasion the court wrote to him and told him to send a representative to obtain a copy.  Further letters were received on 11 and 22 March 2019 asking for the progress of his claim and assistance with an appeal.  He was informed by letter dated 25 March 2019 of the steps to be taken and the time scale for appeal.  He has submitted a letter he wrote to John M Pickavant & Co dated 25 March 2019 seeking assistance.  Mr Pickavant obtained a Form CALL-1 from the High Court and sent it to him under cover of his reply of 28 March 2019.  Thereafter the court file shows that an undated and uncompleted summons (stamped received 16 April 2019) was sent to the court along with a completed affirmation from the applicant.  He complained at that time that he had no idea that his application for leave to apply for judicial review had been refused until he was told by his solicitors on 31 March 2019.  He also complained that he wished to be present for that hearing.  He chased further on 6 May 2019.  His case was therefore referred by this court to the Resource Centre for Unpresented Litigants to assist him on 14 May 2019.  A further detailed letter was sent to the applicant on 17 May 2019 setting out the state of the case and the steps which were required to be taken.  It was also sent to CIC.  The completed summons was finally filed on 5 June 2019.  The applicant claims he did not receive the Order on time but gives no further explanation as to why that could be given that for much of the intervening period he was detained at CIC.  He complains that at no stage did the staff of the Immigration Department inform him that his application for leave had been unsuccessful.  I am surprised by that but the tenor of his correspondence suggests that was the case.  I do not accept that letters from the High Court to CIC and addressed to the applicant did not reach him.  Nor do I accept that once detained he was not informed of the fact that his application for leave had been refused.  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[1].  He failed to do so when he was first released from CIC in 2018, which led to the original documentation being sent to the wrong address.  The consequences of any delay arising from failing to provide an up to date address will fall upon the litigant[2].

6.Even if the court accepted the apparent failure of the Immigration Department to pass on official correspondence on numerous occasions and a complete failure to inform him that his leave application had been refused as far back as April 2018, the court is required to examine whether there is any merit in the applicant’s appeal[3].  Whether there is any such merit will depend upon well-established legal principles[4] including the fact that the court in judicial review is not to provide a further avenue of appeal on the merits of the underlying claim.  The question for the court is whether these submissions truly seek to review the exercise of a judicial function and in so doing indicate a reasonable prospect of success in the intended appeal.

7.As the role of the court in judicial review is not to provide a further avenue of appeal from the decisions of the Director and the Adjudicator, it follows that an appeal from this court should not be founded upon any attempt to appeal those same decisions.  It is an appeal from the decision of this court and the applicant should look to draft grounds of appeal on that basis.  This was explained in some detail to the applicant when he appeared.  He was unable to advance any grounds of appeal.

Conclusion

8.The applicant has now been in Hong Kong since 2009.  He has been interacting with various government agencies throughout and has a reasonable command of English.  The explanation he has offered to this court, as to why he did not receive the Order is protracted and he is certainly responsible for the fact that he did not receive the original or second Form CALL-1.  If the Immigration Department wholly failed to pass on later correspondence and failed to inform him that the application had been unsuccessful, I am deeply disappointed but I am not going to lay the blame at anyone’s door without proper evidence.

9.In the event, I have considered his underlying application.  It has no merit as explained in the initial refusal of leave.  There were no grounds of review and none could be ascertained from the papers.  There was no complaint before the court as to the decision to refuse leave.  The applicant merely wishes the Court of Appeal to consider his situation afresh. Having considered the length of delay, reasons for the delay and underlying merits of his application, it would not be in the interests of justice to grant an extension of time in all the circumstances of this case.

10.The applicant’s summons filed on 5 June 2019 be dismissed.

The applicant appeared in person.