Re Gurung Bijay

HCAL 429/2019

[2022] HKCFI 2462

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 429 OF 2019

___________________

___________________

Before: Hon Campbell-Moffat J in Chambers

Date of Hearing: 5 August 2022

Date of Decision: 5 August 2022

___________________

D E C I S I O N

___________________

Introduction

1.This is an application dated 15 June 2022 to appeal my decision of 29 March 2022 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 benefit of an interpreter although he also clearly understood and spoke English.

Procedural Background

2.The applicant informed the Court that he first came to Hong Kong in 2001 on a dependent’s visa although the marriage broke down thereafter. At some point in 2016, he had been stopped by the police and was arrested as he was not in possession of an ID. On 30 December 2016, the applicant submitted a non-refoulement (“NRF”) claim by way of written representation whilst detained in Castle Peak Bay Immigration Centre (“CIC”). On 19 July 2017, he was served with a Notice to Persons Making a Non-refoulement Claim and provided with a blank claim form to be completed within 28 days. As he was in CIC at the time, this was explained to him by a Nepali interpreter and he was referred to the Duty Lawyer Service (“DLS”) for assistance. He was released upon recognizance on 27 July 2017 and no more was heard from him. He failed to submit the claim form within 28 days, despite being reminded of the deadline on 16 August 2017. Enquiries of the DLS revealed they could not contact him and had no instructions to act. As a result, on 17 August 2017, the Director of Immigration notified the applicant that his NRF was deemed withdrawn. This was done by way of letter to his last known address and also by way of service at the time and place of his next report under his recognizance on 8 September 2017.

3.On 21 December 2017, the applicant was arrested by the police. The papers do not indicate what he was arrested for but he was returned to the custody of the Immigration Department on 23 December 2017. He has since been released upon recognizance once more but the date of release is unknown.

4.On 9 January 2018, whilst in CIC, the applicant made a request to re-open his non-refoulement claim. He submits that he did so because he had been mentally unwell previously which was the reason he had not progressed his original claim. By way of a letter dated 18 January 2018, he was required to provide evidential support for his explanation that he had previously been ill and in financial difficulty. On 19 January 2018, the applicant re-iterated his desire to have his application re-opened but failed to provide any documentary support. As a consequence, his application was considered on the basis of what was known on the papers and was refused on 12 January 2018 (“the Refusal”). The applicant accepted that he had not progressed his claim properly and gave no explanation for not having done so. On 21 February 2018, the applicant appealed that Refusal to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Wong Chun-nam (“the Adjudicator”), considered his appeal on the papers under s37Y(2) and s37ZG of the Immigration Ordinance, Cap 115, which he had clearly failed to comply with, and had therefore refused his appeal on 12 July 2018.

5.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review some seven months later, on 15 February 2019, and did not request an oral hearing. The matter was therefore considered on the papers. The application was out of time and treated as an application for extension of time to apply for judicial review. His application for leave to extend time to apply for judicial review was refused on 29 March 2022. He had 14 days from that date to appeal that decision which would have expired on 12 April 2022. By way of summons dated 15 June 2022, he seeks leave to appeal out of time.

6.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 2B(6). 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[1]. An extension of time will not be granted unless there is a real prospect of success[2].

7.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.

8.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. The applicant accepted he was late and gave no reason within his Affirmation as to why that was the case other than to say that he did not receive the letter in time. The Court file suggests that it was properly served upon his address, which is the same address the applicant uses today. He could provide no reason for not receiving the letter. The applicant maintains that he only learnt of the refusal of leave when he reported to the Immigration Department under his recognizance, which he did on a 6-weekly basis. The date of the Form CALL-1 was 29 March 2022. At most he would have been aware of the decision of this court six weeks after that but he accepts that he took no immediate steps to do anything about it. He accepts it is his fault that his application to appeal was late. 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[3]. It follows that he should check his post regularly. The consequences of any delay arising from failing to do so will fall upon the litigant[4]. If an applicant first becomes aware of the decision of this court when he reports to the Director of Immigration, he is under a duty to act promptly to rectify his error in not providing the correct address and/or not ensuring that he checks his mail on a regular basis.

9.Even where the Court accepts that the explanation given for the delay was a reasonable one, the Court is still required to examine whether there is any merit in the applicant’s appeal[5]. Whether there is any such merit will depend upon well-established legal principles[6] 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 applicant has no grounds of complaint. 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].

10.The applicant has now been in Hong Kong since at least 2016. He has been interacting with various agencies since that date and has at all stages shown a complete disregard for the procedures available to him to progress his claim. In particular, he should now understand the necessity to act promptly when dealing with his application for asylum. The explanation he has offered to this court, as to why he did not receive the order on time and thereafter dealt with it expeditiously, is not acceptable.

11.In any 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 her situation afresh. Having considered the length of delay, reason for the delay and underlying merits of his application, it would not be in the interest of justice to grant an extension of time in all the circumstances of this case.

12.The applicant’s summons dated 15 June 2022 be dismissed.

The applicant appeared in person