Hussain Mansoor v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 784/2017

[2019] HKCFI 580

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 784 OF 2017

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Before: Hon Campbell‑Moffat J in Chambers

Dates of Hearing: 28 February and 1 March 2019

Date of Decision: 1 March 2019

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D E C I S I O N

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Introduction

1.This is an application dated 26 February 2019 for appeal from my decision of 3 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.  The applicant appeared in person and agreed to the proceedings being conducted in English.

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 28 December 2013 and thereafter overstayed.  He submitted a non-refoulement claim on 24 October 2016 and was interviewed by the Director of Immigration (“the Director”) on 18 November 2016.  The Director dismissed his claim, by Notice of Decision on 30 November 2016.  He appealed that Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Gregory Brock, heard him on 31 May 2017.  The adjudicator refused his appeal on 6 October 2017.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 19 October 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 3 August 2018.  He had 14 days from that date to appeal that decision which would have expired on 17 August 2018.  By way of summons dated 15 October 2018, he seeks leave to appeal out of time.  The date of the summons is as a result of the applicant seeking to file his summons on 15 October 2018, at which point the summons triggered the listing of today’s date. However, the applicant did not then file his summons on that date and only sought to file on 26 February.  Whether the appropriate date is 15 October 2018 or 26 February 2019 (and the latter is clearly the operative date), the applicant is significantly out of time to appeal.

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, which is only one aspect for the court’s consideration.  The affirmation in support merely states that he did not receive the Order and that he had not been provided with an oral hearing for his judicial review.  A handwritten letter in support of that suggests that he also complains of lack of legal representation.

6.He claims he did not receive the Order because he lives in a hut on a large piece of land and never receives mail.  His landlady may do so, but he does not and he knew this when he furnished his address in his Form 86.  He relies upon being communicated with by phone.  He did not inform the court of this.  He maintains that he found out about the Order from the Immigration Department when he reported, which he did every four weeks.  He says that despite reporting at least twice and possibly three times, between the date of the Order and the date he says he was informed about it, he was not told of the order earlier because his handling officer was away on leave over the entire period.

7.As for the oral hearing, he did not request one.  As for legal representation, the Court of Appeal has repeatedly stated that the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgement in FB v Director of Immigration [2009] 2 HKLRD 346 prescribed that a claimant has an absolute right to free legal representation at all stages of proceedings: Re Zunariyah [2018] HKCA 14.

8.Additionally, the applicant maintains that he now has further evidence in support of his claim.  It takes the form of internet and newspaper reports but is in Indian and was not brought to court on 28 February 2019.  The court adjourned for one day for the applicant to provide copies of the cuttings and to provide a summary of the contents.  He did so.  They are in fact in English and are dated July 2014, which is some months after he came to Hong Kong.  He suggests that he knows the person in the cutting who was murdered and that he is part of his community.  He accepted however that the people named as the perpetrators of murder are not identified by him in his claim and he does not suggest he knows them.  He also accepts that the political party referred to is not referred to in his claim but he says it is linked to his own party.  Lastly, he accepts the apparent reason for the attack has nothing to do with him.  In essence he provides the cuttings to show the type of incidents which occur in India and that they are indicative of state involvement in political persecution.  They do not do that. They do not assist him in showing that he was in anyway prejudiced before the Director or the TCAB.

Conclusion

9.The applicant has now been in Hong Kong since 2013.  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 is not acceptable and, frankly, disbelieved.  The documents he now seeks to rely upon date back to 2014 and do not advance the position he took before the Director or the TCAB such that, exceptionally, he should be allowed to advance them before the Court of Appeal to have the matter remitted for judicial review.

10.I have considered his underlying application.  It has no merit as explained at some length in the initial refusal of leave.  The facts he relies upon commenced in 2013, the same year that he came to Hong Kong.  He was never assaulted and no threats were made to him.  There were no grounds of review for the leave application.  The applicant appears now to be saying that he had no legal representation before the TCAB, but this is not a ground advanced before this court and is not one which would have assisted him in any event.  There is 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.  Similarly, the applicant advances no grounds of appeal.

11.Having considered the length of delay, reason for the delay, underlying merits of his application and lack of any grounds of appeal, 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 26 February 2019 be dismissed.

The applicant appeared in person.