Hussain Arif v. Torture Claims Appeal Board/ Non Refoulement Claims Petition Office

HCAL 1071/2017

[2018] HKCFI 2751

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1071 OF 2017

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BETWEEN

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Before: Hon Campbell-Moffat J in Chambers

Date of Hearing: 13 December 2018

Date of Ruling: 13 December 2018

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R U L I N G

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Introduction

1.This appears to be an application dated 24 September 2018 for appeal from my decision of 31 August 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, although he does not appear to have understood that.  I have treated this hearing as an application to extend time for appeal.

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 illegally on 8 March 2016.  He submitted a non-refoulement (“NRF”) claim on 23 May 2016 and was interviewed by the Director of Immigration (“the Director”) on 21 June 2016.  The Director dismissed his claim under all heads, by Notice of Decision on 2 August 2016 and by Notice of Further Decision 6 April 2017.  He appealed those Decisions to the Torture Claims Appeal Board.  The adjudicator of the TCAB, Ms Kay Ransome, heard him on 11 September 2017.  The Adjudicator refused his appeal on 6 December 2017.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 14 December 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.  His application for leave to apply for judicial review was refused on 31 August 2018.  He had 14 days from that date to appeal that decision which would have expired on 14 September 2018.  By way of summons dated 24 September 2018, he is now deemed to be seeking 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 59, rule 2B 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.

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.  He did not do so.  His affirmation in support seeks a re-hearing of his application.

6.The applicant appeared in person.  He submitted that he was late in filing his appeal because he was not living at the address given to the court and found out when he signed on at Immigration.  He maintains he is illiterate and needed a friend to explain to him the documents and what he should do next.

Conclusion

7.The applicant has now been in Hong Kong since 2016. He has been interacting with various government agencies for the entirety of that period and accepts he received all necessary documents and notifications.  He fully understood that they required an up-to-date address in order to correspond with him.  The reason this application is late is to be put entirely at his own door.  He was notified promptly of the decision of this Court and, had he been living at his registered address, he would have been made aware of what was required of him should he wish to appeal that decision.  It was incumbent upon him to do so promptly.  He put himself in a position where that could not happen.

8.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 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.  I have explained the procedure at length and have given him the opportunity to say in what way he feels the Adjudicator erred.  He was unable to do so and simply submits he wishes to stay in Hong Kong.  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.

9.The applicant’s summons dated 24 September 2018 be dismissed.

The applicant appeared in person.