Afghan Abdul Qadar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 101/2018

[2019] HKCFI 735

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 101 OF 2018

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D E C I S I O N

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Introduction

1.This is an application dated 15 October 2018 for appeal from my decision of 28 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 illegally on 12 May 2015.  He submitted a Non‑refoulement Claim Form on 16 March 2016 and was interviewed by the Director of Immigration (“the Director”) on 7 April 2016.  The Director dismissed his claim under all heads, by Notices of Decision on 17 May 2016 and 10 February 2017.  He appealed those Decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Ms C K S Lam (“the Adjudicator”), heard him on 1 March 2017.  The Adjudicator refused his appeal on 29 December 2017.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 22 January 2018, in which he gave his address as G/F, 161 Kat Hing Wai, Kam Tin, Yuen Long.  He 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 28 September 2018 and sent to the address given by him to the court. Subsequent to that date, the applicant filed a Notice of Change of Address with the court on 12 October 2018.  His new address was Room 3, Flat 1, 3/F, Po Ting Building, 13‑25 Pau Cheung Square, Yuen Long.  He had 14 days from 28 September 2018 to appeal the decision, which would have expired on 12 October 2018.  That was the date he notified the court of his change of address.  By way of summons dated 15 October 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.

6.The applicant appeared in person.  In his affirmation dated 15 October 2018, the applicant submitted that he was late in filing his appeal because he had not received the original letter from the court.  He was informed of the decision by the Immigration Department when he next attended upon his recognisance.  Before this court he maintained that he had checked his previous address and the letter had never been received.  He could not remember when he had attended at Immigration but he had come to court two days later in order to lodge an appeal.

Conclusion

7.The applicant has now been in Hong Kong since 2015. 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 the court required an up‑to‑date address in order to correspond with him, that can be evidenced by the fact that he filed a Notice of Change of Address on 12 October 2018, at a time, he says, he had not received the Form Call‑1 or Order.  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 given his current address to the court, he would have been made aware of what was required of him should he wish to appeal that decision.

8.In any event, the delay was a short one and I have considered his underlying application in some detail to establish whether there is a good reason to extend time.  The claim before the Adjudicator has no merit as can be seen in the initial refusal of leave and in the underlying papers.  There were no grounds of review advanced to support the Form 86 and none could be found by this court.  The applicant was unable to identify any before the court today.  There is also no complaint before the court as to the decision to refuse leave.  He has not advanced any grounds of appeal. 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 15 October 2018 be dismissed.

The applicant appeared in person.