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

HCAL 1947/2019

[2023] HKCFI 2232

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1947 OF 2019

____________

BETWEEN

____________

______________

D E C I S I O N

______________

Introduction

1.This is the Applicant’s application by summons filed on 20 July 2023 (the “Summons”) for an order that “leave to amend the notice of application for leave to apply for judicial review (the “JR application”) be granted, extension of time to file the Form 86 (ie the JR application) be refused and the application for leave to apply for judicial review be dismissed”. The remedy sought in the Summons does not make sense.

2.As revealed by the Form CALL-1, the Applicant had applied for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) dated 14 March 2019, which was in fact the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) refusing his application for late filing of his Notice of Appeal (“NOA”) against the decision of the Director in his Notice of Decision dated 24 July 2017 (the “Notice of Decision”). It is therefore clear that the Board should be the proper respondent. Hence, this Court made an order dated 9 May 2023 granting the Applicant leave to amend his JR application, ie the Form 86, making the Board a putative respondent but refused to grant him extension of time to file the JR application and then dismissed it (the “Order”). Hence, it is clear that the intention of the Applicant in the Summons is to apply for leave to appeal this Order. The Applicant is triple late: late in filing his NOA; late in filing his JR application; and late in appealing this Court’s Order refusing his JR application.

Legal principles applicable to application for extension of time to appeal

3.Under Order 53, rule 3(4) of the Rules of the High Court, an appeal against any decision of the court refusing an application for leave to apply for judicial review shall be made within fourteen days after the date of the decision. Thus, by 20 July 2023 when the Summons was filed, this application was almost two months out of time. Leave to appeal out of time is required.

4.In Jagg Singh and Torture Claims Appeal Board / Non-refoulement Claims Petition Office^[1], the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if extension of time was granted.

Length of delay and reasons for the delay

5.The application is almost two months late which is substantial in the context of a 14-day period of appeal. In his four-page submission attached to his supporting affirmation, the Applicant gave a further explanation for his delay in filing his NOA before the Board. That explanation addresses the issue of merits of the intended appeal, but does not explain the delay in taking out the appeal.

Prospect of success of the intended appeal

6.The factual issue raised in the JR application is whether it was proper for the Board not to allow the late filing of the NOA. Previously, the Applicant had told the Board in section 5 of the NOA that he had never received the Notice of Decision from the Director. That explanation was rejected by the Board.

7.At the hearing of the JR application, in further support of his above assertion, the Applicant told this Court that section 5 of the NOA was written by an immigration officer and had not been interpreted to him. That was also rejected by this Court: see Paragraphs 7 to 9 of the Form CALL-1. If the Court had accepted his assertion, it would have to expunge his explanation in section 5 of the NOA. In that eventuality, he would have no explanation for the delay just the same.

8.The further explanation he gave in his four-page submission is, in short, that he had some problems with his landlord and left his residential address to live with his friend without informing the Immigration Department or his case officer. While he might have thought this is a complete and valid explanation for the delay in filing his NOA, it is not. As a matter of law, 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 a timely manner. If he failed in his duty, he has to bear the consequence of any delay occasioned by the ineffectiveness of such an address: see Karamjit Singh[2] and Re Hasmi Rizwan Imran[3]. This further explanation, even if true, actually confirms that the Board was right in rejecting the Applicant’s explanation for the delay. The Board found he had no valid explanation for the delay. It could also find no other matters known or revealed to the Board by the factual basis of the Applicant’s claim which might amount to special circumstances as might make it unjust not to allow the late filing. Hence, it refused the late filing: see Paragraphs 10 to 13 of the Form CALL-1.

9.For reasons as given in Paragraph 17 of the Form CALL-1, this Court could not detect any error of law in the Board’s decision in refusing the late filing of the NOA or procedural unfairness at any stage of the non-refoulement proceedings. The decision does satisfy the enhanced Wednesbury test. Hence, this Court refused the JR application. The Applicant has not advanced any grounds to challenge these findings of the Court. He also has no factual basis to launch any attack on the Court’s findings. He has advanced no arguable grounds of appeal and has no explanation for the delay in appealing. His intended appeal has no prospect of success.

Prejudice to the respondent

10.If this application is allowed, the prejudice to the proposed respondent and to public administration is obvious. It is a clear abuse of legal process to challenge a decision without proper and good grounds of appeal and which is bound to fail. To allow such a challenge to proceed when it is already out of time would encourage other claimants to indulge in such abuse and create prejudice to the intended respondent and to the administration. 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 genuine victims of persecution, torture and other cruel, inhuman or degrading treatment or punishment. Allowing his application may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

11.For the above reasons, the application for extension of time to appeal is refused.

The applicant is not represented