Bah Mamadou Habib v. Torture Claims Appeal Board/N-refoulement Claims Petition Office

HCAL 1098/2017

[2019] HKCFI 571

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1098 OF 2017

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D E C I S I O N

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Introduction

1.This is an application dated 11 October 2018 for appeal from my decision of 14 September 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.  

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 7 August 2014 and thereafter overstayed.  He submitted a non-refoulement (“NRF”) claim on 16 December 2015 and was interviewed by the Director of Immigration (“the Director”) on 3 February 2016.  The Director dismissed his claim under all heads, by Notices of Decision on 8 April 2016 and 18 May 2017.  He appealed those Decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Ms Corrina Tai, heard him on 6 September 2017.  The adjudicator refused his appeal on 20 October 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 refused on 14 September 2018.  He had 14 days from that date to appeal that decision which would have expired on 28 September 2018.  By way of summons dated 11 October 2018, he 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.  The applicant has not filed an affirmation in support of his summons.  He appeared in person before this court and maintained that he did receive the order on time but did not look for it until reminded to do so by the Immigration Department, at which point he collected it and sought advice from a friend before filing his appeal.  The ambit of the judicial review process was explained to him as was the ambit of any appeal from the order of this court dated 14 September 2018.  The applicant was given an opportunity to indicate grounds of review of the TCAB and in respect of the order of this court and could not do so.

Conclusion

6.The applicant has now 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.  The explanation he has offered to this court, as to why he did not receive the order in good time is not acceptable.

7.In any event, I have considered his underlying application.  It has no merit as explained at some length in the initial refusal of leave.  The were no grounds of review.  There are none now.  There was no complaint before the court as to the decision to refuse leave.  There is none now.  The applicant merely wishes the Court of Appeal to consider his 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.

8.The applicant’s summons dated 11 October 2018 be dismissed.

The applicant appeared in person.