Ahmed Tosif v. Torture Claims Appeal Board/Non Refoulement Claims Petition Office

HCAL 1102/2017

[2018] HKCFI 2747

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1102 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 is an application dated 20 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 seeks leave to extend time to appeal against that order.

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 legally on 25 May 2014 from India.  He submitted a non-refoulement (“NRF”) claim on 2 February 2016 and was interviewed by the Director of Immigration (“the Director”) on 14 March. The Director dismissed his claim under all heads, by Notice of Decision on 12 April 2016 and by Notice of Further Decision 4 July 2017.  He appealed those Decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Kevin Browne, heard him on 27 September 2017.  The Adjudicator refused his appeal on 24 November 2017.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 18 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 dismissed 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 20 September 2018, he now seeks 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.  He filed no affirmation in support of his summons.

6.The applicant appeared in person.  He submitted that he was late in filing his appeal because he had not received the Call-1 or the Order of this Court.  Upon further examination, the applicant accepted that he had been released from Castle Peak Immigration Centre (“CIC”) at the time he submitted his Form 86 but had put the CIC as his address upon that form.  His Affirmation in support had yet another address but neither address was the one he was residing at.  As a consequence, he was not informed about the Order until 13 September 2018 when he signed on.  He attended at the High Court the next day and was told a copy order would be sent within two to three days but the applicant failed to provide his proper address and so did not receive it. Hence he did not file his summons until 20 September.

Conclusion

7.The applicant has been in Hong Kong since 2014.  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 explanation he has offered to this Court does not absolve him of responsibility for ensuring communication.  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 either of the addresses given to the court, he may have been made aware of decision in a timely manner.  It was incumbent upon him to appeal 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 save for a complaint that the Adjudicator was unfair and unreasonable.  He has made no complaint before this Court as to the decision to refuse leave.  That is because he says he has not had it interpreted to him.  The applicant merely wishes the Court of Appeal to consider his situation afresh.  I have explained to the applicant that a re-hearing is not the function of the Court in judicial review proceedings.  He now understands this.  He was provided with an opportunity to say where he felt the Adjudicator had erred.  He could not do so.  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 20 September 2018 be dismissed.

The applicant appeared in person.