Ma v. Torture Claims Appeal Board/ Non Refoulement Claims Petition Office

HCAL 103/2017

[2019] HKCFI 446

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 103 OF 2017

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Before: Deputy High Court Judge Woodcock in Court

Date of Hearing: 14 February 2019

Date of Decision: 5 March 2019

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D E C I S I O N

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1.This is an application for extension of time to appeal against my decision of 29 September 2017. I refused this applicant leave to apply for judicial review. The applicant may appeal as of right but has to observe the time limits to appeal an interlocutory order. Pursuant to Order 53 rule 3(4), the applicant had 14 days in which to apply to the Court of Appeal to appeal that decision. He failed to do so. He now requires and seeks leave to extend time to appeal against that order. This application is dated 9 January 2019 and he has supported it with an affirmation.

2.The applicant had filed a Form 86, a notice of application for leave to apply for judicial review on 27 March 2017.  The applicant is a national of Bangladesh and last arrived in Hong Kong on 18 November 2017 using a passport issued under a false name but overstayed.  When he applied to the Immigration Department for an extension of his stay, he then revealed his real name.  He was detained and whilst under detention he lodged a torture claim in October 2008.

3.I have set out the background to his claim in the Call 1 Form.  The applicant did appear at that hearing and confirmed his home address remained the same.  My order was posted to him on 29 September 2017.  He now claims that he did not receive this order on time which meant he failed to comply with the time limits to appeal.

4.In his affirmation he said he did not get the order on time.  During the hearing for the summons he elaborated and said he received it about one month later when he found the letter on the floor near his post box at his home.  When asked why he did not apply for this extension of time until over one year later, January 2019, he explained that he did come to the High Court in March or April 2018 to apply for leave to apply for judicial review again.  He ultimately did not make a duplicate application but was told by staff that the deadline to appeal had passed.  He then waited another eight or nine months before this summons for an extension of time.

5.When asked why he did not apply earlier, he said he did not know the procedure and it took a long time to find somebody who was familiar with the procedure.  That was his reason for the lengthy delay.

6.In his affirmation he states that decision-makers did not make sufficient enquiry into his claim.  He could not elaborate on this ground. There are no other grounds of appeal put forward.  He reiterated that it was still dangerous for him to return home despite an absence of over 10 years because he still owed money to members of the ruling party, the Awami League.  He added that he had married a Hong Kong resident in 2015.  He has applied for a dependants visa which was rejected once in 2017 but he has made another application.

7.I find no reasonable explanation for his delay in bringing the intended appeal; the delay is substantial.  I also find there to be no merit nor any real prospect of success in his intended appeal.  There are essentially in his affirmation, no grounds of appeal nor any complaint of my decision to refuse leave.  I have given him the opportunity to say more during the hearing but he was unable to do so.  He only reiterated that it was still dangerous to return home.

8.Having considered the length of delay, the lack of a reasonable explanation for it and the lack of merit in his application, it would not be in the interests of justice to grant an extension of time.  The applicant’s summons dated 9 January 2019 is dismissed.

The applicant appeared in person.