Shan Ali v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1155/2017

[2019] HKCFI 581

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1155 OF 2017

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Before: Hon Campbell‑Moffat J in Chambers

Date of Hearing: 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 13 December 2018 to appeal my decision of 27 November 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 illegally on 18 November 2013.  He submitted a non-refoulement (“NRF”) claim on 4 January 2016 and was interviewed by the Director of Immigration (“the Director”) on 23 March 2016.  The Director dismissed his claim under all heads, by Notice of Decision on 18 May 2016 and by Notice of Further Decision 20 March 2017.  He appealed that Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Fraser Syme, heard him on 3 April 2017. The adjudicator refused his appeal on 19 April 2017.

3.The applicant filed a Notice of Application on a Form 86 seeking leave to apply for judicial review on 29 December 2017.  He was out of time and did not request an oral hearing.  The matter was therefore considered on the papers.  His application for extension of time for leave to apply for judicial review was refused on 27 November 2018.  He had 14 days from that date to appeal that decision which would have expired on 11 December 2018.  By way of summons dated 13 December 2018, he seeks to appeal the decision of this court but requires first to obtain 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.  He had been living at a different address for some time and had not informed the court of the new address.  He had previously been refused leave to extend time for leave to judicially review the decision of the TCAB and could provide no excuse as to why he was late for that application as well.  It soon became clear that the applicant is simply playing the system.  He had no complaint against the TCAB and no complaint against the decision of this court.  He had no grounds of appeal.

Conclusion

7.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 address on his Form 86 was Room B, Flat F, 5/F, May Moon Building, No 50‑68 Hop Yick Road, Yuen Long and that is the address to which the Call‑1 Form and Order were sent to.  He fully understood that the court required an up to date address in order to correspond with him.  This is not the first time he has been late in making an application.  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.I have considered his underlying application.  It has no merit as explained in the initial refusal to extend time.  I canvassed it with him nce more in court so as to provide an opportunity to suggest any possible complaint which he may have had in respect of the TCAB, he had none.  There were no grounds of review filed with his Form 86 and he can provide none now even with the benefit of assistance from the court in helping him understand judicial review.  Nor was there any complaint before the court as to the decision to refuse extension of time for judicial review.  The applicant merely wishes the Court of Appeal to consider his situation afresh.  The basis of the applicant’s claim below arose out of a personal inter‑familial dispute over land and has no merit under the regime.  Having understood judicial review and accepted he had no complaint nor any grounds of appeal, the applicant nevertheless asked if he could appeal my decision today in any event.  There is no doubt he is playing the system and I asked him why he should not pay costs despite his apparent Form 8 status.  In response he claimed he had the assistance of friends to finance himself and could not oppose an award of costs against him.

9.The applicant’s summons dated 13 December 2018 be dismissed.  He will pay $1,000 towards the costs of these proceedings.

The applicant appeared in person.