Case Document

100%Judiciary

HCAL 924/2018

[2022] HKCFI 99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 924 OF 2018

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RE:	LOVEPREET SINGH	Applicant

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Before: Deputy High Court Judge To in Chambers

Date of Decision: 14 January 2022

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D E C I S I O N

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Introduction

1.This is the Applicant’s application for extension of time to appeal the order of Deputy High Court Judge CP Pang (“DHCJ Pang”) dated 28 September 2020 refusing to grant him leave to apply for judicial review (the “Order”).

2.On 24 May 2018, the Applicant applied for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) dated 25 April 2018 (the “Decision”). By that Decision, the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration dated 25 November 2016 refusing his application for non-refoulement protection.

3.On 17 November 2020, about one and half months after the Order was made, the Applicant applied by summons for leave to appeal the Order out of time. In his summons, he gave the following explanation for the delay in appealing the Order:

“… I was late because I did not receive any letter even I changed address in immigration. It was until when I go to signature and officer told me that your case is finished in high court. They pushed me to detain but I promised them that I will go to high court and asked about my case, because I really don’t have idea about judicial review, I really don’t have idea that how to change address in high court. So please give me extension to apply for notice of appeal.”

4.In his supporting affirmation filed on the same date, he said:

“… after I applied for judicial review then I moved to other room. And I changed address in immigration and TCAB. I really don’t have idea that I need to change in high court. Because I don’t know the judicial review system in Hong Kong. I request to give me extension for notice of appeal.

The judges give unfair decision. I accepted that I had inconsistence in my oral hearing in TCAB, bcz I was detained approx. 9 months in immigration centre and I was really mentally torture and I forgot the what happened to me in past. Submitting exhibit A: total 8 pages.”

5.In essence, the Applicant’s rather convoluted statements suggest that he did not receive the Order because he had moved his address without informing the court. He only learned about the Order on his regular reporting to the Immigration Department. He did not know the law and did not know he had to report his change of address to court. He complained the Order was unfair. But he gave no particulars.

6.As the Applicant had not given any specific grounds of appeal, this Court gave the Applicant directions by letter dated 16 June 2021 to file an affirmation setting out his grounds of appeal and warned him that the Court will determine his application on paper whether he complied with the directions or not. He did not respond.

The Law

7.In AW v Director of Immigration and William Lam[1], the Court of Appeal held that what may constitute a good reason for extending time cannot be defined. In most cases, this would be a “multi-faceted question” the answer to which would depend on the circumstances of each case. The following factors, which are not exhaustive, are likely to be of significance in determining whether to grant extension of time:

(1) length of delay;

(2) explanation for the delay;

(3) merits of the substantive application;

(4) prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time; and

(5) whether the application raises questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.

The delay and reasons for the delay

8.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 17 November 2020, the time to appeal has expired. The application for leave to appeal is about one month out of time. The delay was not particularly long, but not insubstantial having regard to the time allowed for lodging an appeal.

9.The Order of DHCJ Pang was sent to the Applicant by post to his address at Portland Street on 28 September 2020. In his supporting affirmation, he said he did not receive the Order because he had moved his address but had not informed the Court. He did not know it was his duty to report his change of address to the Court. It was only on his regular reporting to the Immigration Department that he learned about the Order having been made.

10.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. Ignorance of the law or his duty is not an excuse. Hence, there is no valid explanation for the delay.

Grounds of appeal

11.The Applicant had not advanced any specific grounds of appeal. He only made a vague allegation that “the judges give unfair decision” in his supporting affirmation, but gave no particulars. He had made similar vague allegations against the Board when applying for leave to apply for judicial review[3]. DHCJ Pang was conscious of the complaint and had that in mind when dismissing that suggestion in paragraph 20 of the Call-1 Form. Though that complaint was directed at the Board, there is no reason to suggest DHCJ Pang had not been conscious of his own duty of fairness when dealing with his application. Actually, having examined the Call-1 Form with anxious scrutiny, I am unable to find any suggestion, let alone evidence, of unfairness on the part of the Court in refusing the Applicant leave to apply for judicial review.

12.Despite my specific directions to file specific grounds of appeal, the Applicant did not respond. The Court’s letter had not been returned. There is no suggestion that the Applicant had not received the letter because he had moved or for any other reasons. Even if he had moved, he only had himself to blame, for this time he must have known he had the duty to inform the Court of any change of address. Accordingly, I find that the Applicant has failed to advance any valid grounds of appeal.

Prejudice to the respondent

13.As for prejudice to the proposed respondent, it is unlikely that this issue would be explored in an ex parte application for extension of time. The prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed is obvious. The delay is by itself an abuse of the process of the court and the non-refoulement protection arrangement. To allow the challenge to proceed 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 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. This application does not raise any questions of general public importance. Allowing the application may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

No questions of general public importance

14.The application does not raise any questions which are likely to have to be resolved by the courts in any event.

Conclusion

15.Though the Applicant was only one month late, the delay was self-created. It was not insubstantial. He has no valid explanation for the delay and no valid grounds of appeal. For these reasons alone, his application for leave to appeal must be dismissed. It would be a futile exercise of the Court’ discretion to grant extension of time to enable an applicant to appeal or to apply for a judicial review which is bound to fail. To allow such an un-meritorious challenge to proceed would be prejudicial to the intended respondent and the administration. The application does not raise any questions of general public importance. Accordingly, the application for extension of time to appeal the Order of DHCJ Pang is refused.