Re Jorawar Singh

HCAL 573/2017

[2022] HKCFI 925

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 573 OF 2017

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Before:  Deputy High Court Judge To in Chambers

Date of Decision:  14 April 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 by summons filed on 5 January 2022 (the “Summons”) for extension of time to appeal the order of Deputy High Court Judge Woodcock (“DHCJ Woodcock”) dated 23 April 2018 (the “Order”) refusing him leave to apply for judicial review of the decision of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) dated 13 February 2017 (the “Decision”). His application for leave to apply for judicial review was made out of time.

The background

2.On 1 September 2017, the Applicant applied by Form 86 for leave to apply for judicial review of the Decision of the Board. His application was set down for hearing before DHCJ Woodcock on 27 March 2018. On 10 January 2018, the notice of hearing was sent to him at his address in Kingston Street (the “Kingston Street address”) as stated by him on the Form 86.

3.The Applicant did not appear on the date of hearing. The court interpreter managed to contact him on the phone. The Applicant told the interpreter that he had not received the notice of hearing and confirmed that the Kingston Street address was correct. He was instructed to write to the Court within seven days stating his reasons for his absence if he wished to have another hearing.

4.The Applicant wrote to the Court within two days as follows:

“… I received the call from court. They said today is your [hearing] in court that time I shocked because I did not received any documents and no one tell me and even they did not call me to conform (sic) your [hearing] date I already shift new house and within week we visit old house and check the letters or documents but I did not got any documents or letters. …”

In this rather convoluted explanation, he confirmed he received the call from the court interpreter. He asserted that he never received the notice of hearing, but seemingly put the blame on others for not reminding him or telling him about the date of hearing. The explanation he gave for not receiving the notice was that he had moved within the week. He said he exercised due diligence checking for mail in his old address. He exhibited an agreement for tenancy commencing on 1 February 2018 in respect of his new address at Shanghai Street.

5.The tenancy agreement showed that he moved well after the notice of hearing was sent to him. Subsequently, the notice of hearing was returned to the Judiciary through the post on 2 February 2018, and marked “UNCLAIMED’. Thus, the real reason for the Applicant not receiving the notice is that he chose not to claim the notice. The story he gave in his letter is all false. DHCJ Woodcock did not accept his explanation, refused his request for a second hearing and proceeded to consider his application on paper.

6.On 23 April 2018, DCHJ Woodcock issued the Order and Call-1 Form refusing to grant him a second hearing, refusing to grant him extension of time to apply for judicial review and dismissing his application for leave to apply for judicial review. The Applicant now seeks leave to appeal the above Order out of time.

The Law

7.In Jagg Singh v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and 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 faors, which are not exhaustive, are likely to be of significance in determining whether to grant extension of time:

(1)  length of delay;

(2)  reasons for the delay;

(3)  prospect of the intended appeal;

(4)  prejudice to the respondent if extension of time was granted.

Length of delay and reasons for the delay

8.By 5 January 2022 when the Summons was filed, about three years and eight and half months had lapsed since the date of the Order. The application is almost three years and eight months out of time. The delay is grossly inordinate in the context of a fourteen-day appeal period. The Applicant did not state his grounds of appeal or explain the reason for his late application in the Summons. In his supporting affirmation, he said:

“I am the Applicant herein. … The decision made by the High Court Judge Woodcock has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country. Moreover, it’s not sufficient that was a litigant in person & unrepresented, thereby making me unaware of the rules regarding the time limit”. I never received any decision made by the High Court on my residential address I only got to know about it from my Immigration officer. ...”

As may be gathered from his affirmation, the Applicant’s ground of appeal is that the Order was reached unfairly in that he was not given an opportunity to clarify his case and the situation in his home country. The explanation for the late appeal is that he never received the Call-1 Form and Order; and he only learned about them from the immigration officer.

9.In the light of the background mentioned above, the explanation he gave is ambiguous. To assist him in presenting a proper case, this Court gave him directions on 18 January 2022 to file a statement stating:

(a)  the date when he started his current detention in Castle Peak Bay Immigration Centre;

(b)  the date and circumstances under which he first received information from the immigration officer about the result of his appeal to the Torture Claims Appeal Board; and

(c)  the frequency of his recognizance reporting to the Immigration Department since 23 April 2018.

He was also informed that his application for extension of time will be determined on paper without a hearing whether he has complied with the above direction.

10.On 8 February 2022, the Applicant delivered his statement providing the following information:

“(a) 13 December 2021;

(b) When I was told that I need to go back to my country on the first day of my detention; and

(c) I did not report to the MTK Immigration since 2018.”

By the above statement, the Applicant suggested that he never reported to the Immigration Department since 2018; and he was first informed about the Order on 13 December 2021 when he started his current detention in Castle Peak Bay Immigration Centre.

11.Piecing the information in the Applicant’s statement together with the Court’s record and incontrovertible evidence, the following facts emerged. The Order and Call-1 Form were sent to the Applicant on 23 April 2018 at his address in Shanghai Street (the “Shanghai Street address”) which he provided to the Court in January 2018. The Order and Call-1 Form were never returned to the Judiciary through the post. According to the tenancy agreement he produced to the Court, his tenancy of the premises at the Shanghai Street address commenced on 1 February 2018 and would terminate on 31 March 2019. He never reported his recognizance to the Immigration since 2018. He was detained in Castle Peak Bay Immigration Centre since 13 December 2021. He could not have informed the Immigration Department of his move from the Shanghai Street address, if in fact he had moved. In any event, it is not his case that he had moved from the Shanghai Street address when the Order was issued; and there is no evidence that he had reported his change of address to the Immigration Department or to the Court. The inference that he had received the Order and Call-1 Form to be raised from these facts is so strong as to make his assertion that he had never received them incredible. I do not accept his evidence that he had never received the Order and Call-1 Form. There is therefore no explanation for the delay of about three years and eight months in filing an appeal.

12.As for his argument that being a layman he has no knowledge of the time limit, this is not a reason for the delay. In an appropriate case, the court has discretion to excuse such delay, particularly if short. But absent a reasonable explanation for the delay and merits, this argument carries little weight.

Prospect of the intended appeal

13.The Applicant’s only ground of appeal is that the Order was reached unfairly in that he was not given an opportunity to clarify his case and the situation in his home country.

14.The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[2]. Thus, the Court would focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality. It is therefore not open to an applicant in a judicial review to challenge the Board’s finding of fact as such other than on these grounds.

15.The unfairness alleged by the Applicant is the deprivation of an opportunity to clarify his case and situation in his home country. The Order which he sought to appeal against was made in his absence despite his request for a second hearing. He is therefore challenging DHCJ Woodcock’s decision in refusing his request for a second hearing. The learned judge’s reasons for refusing his request as stated in paragraphs 5 and 6 of the Call-1 Form are as follows:

“5. He appears to use the excuse that he had moved house and did not receive the notice of hearing but the dates do not tally. The tenancy agreement postdates the notice of hearing. Wherever he was living on 10 January 2018 was not at the address related to this tenancy. His explanation in the letter does not tally with what he told the interpreter over the phone; it would appear he is trying to make excuses for his nonappearance.

6. I am satisfied from the court files that a notice of hearing was posted to his address as set out in his Form 86. I see no reason to accommodate his request for a second hearing date, his lack of a reasonable excuse or rather conflicting excuses suggests an intention to delay these proceedings. Therefore, I proceed to consider his application on the papers.”

16.It is amply clear that the explanation given by the Applicant for his non-appearance is false or concocted. The evidence shows clearly that the notice of hearing had been sent to his Kingston Street address as stated in his Form 86 and he was actually living at that address. That notice was returned and marked “UNCLAIMED”. It is common knowledge that if a mail sent by registered post or by recorded delivery could not be delivered to the addressee or someone receiving it on his behalf, the postman will leave a note advising the addressee to pick up the mail at a designated post office. If the mail is not picked up within a certain period of time, it will be returned to the sender. Thus, the truth is the notice had been properly delivered to the Applicant’s address, but he declined to receive it or pick it up from the post office. This is not the case as he alleged that the notice had gone astray. Not only was he giving a false excuse in an attempt to deceive the Court, it was by his own default that he did not receive the notice.

17.I am not suggesting that if someone failed to collect a mail it must necessarily be due to fault on his part. There may be circumstances when his failure could be reasonably condoned. For example, a recipient would be reasonably excused if he was unable to collect the mail because he was out of town, or through illness, hospitalization or even detention by the authority, etc. But this is not the Applicant’s case. What he did was to put up a false excuse in an attempt to deceive the Court. Now he turns around to complain about procedural unfairness by reason of his failure to deceive the Court. I do not think the high standard of fairness would require the court to put up with, not just omissions, but such contemptuous or contumacious conduct of a litigant when seeking justice from the court. The learned judge had good reasons for refusing the Applicant’s request for a second hearing.

18.This ground is devoid of particulars. He did not particularize what was in his case that required his clarification and which the Board failed to take into account. He did not particularize the situation in his home countrywhich the Board had failed to consider.

19.Furthermore, there is no merits in the proposed appeal. The substance of the Applicant’s complaint is that he was prevented from clarify his case and situation in his home country. This complaint never formed part of his grounds for applying for leave to apply for judicial review. The grounds for seeking leave as asserted in his supporting affirmation are:

(1)  his lack of legal representation before the Board/miscarriage of justice;

(2)  the lack of language assistance given to him/unfairness;

(3)  no reason given by Director for rejecting BOR 2 claim/procedural unfairness; and

(4)  no attendance by Director at the appeal/not taken seriously.

There was no mention about the Board not allowing him to make submissions to clarify his case or to give or to refer to any evidence about the situation in his home country. If these matters never formed the basis of his application for leave, the learned judge would not have considered them. There could be no procedural unfairness if the Applicant were prevented from advancing an argument which he had never raised.

20.For the above reasons, I find that the Applicant has failed to advance any arguable grounds of appeal. The intended appeal has no prospect of success.

Prejudice to the respondent

21.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.

Conclusion

22.The Applicant has no arguable grounds of appeal and has no valid explanation for the very substantial delay of about three years and eight months. For these reasons alone, his application for leave to appeal must be dismissed. It would be a futile exercise of the Court’s 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. Accordingly, the application for extension of time to appeal the Order of DHCJ Woodcock is refused.

The applicant is not represented