Aqeel Muhammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 660/2017

[2019] HKCFI 716

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 660 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 19 November 2018 for appeal from my decision of 15 June 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 5 March 2009.  He submitted a non-refoulement claim on 31 July 2014 and was interviewed by the Director of Immigration (“the Director”) on 7 October 2014.  The Director dismissed his claim under all heads, by Notices of Decision on 13 January 2015 and 2 February 2017.  He appealed those Decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Peter Nguyen, heard him on 15 September 2015.  The adjudicator refused his appeal on 12 October 2016 and 1 September 2017 in respect of BOR 2.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 22 September 2017, in which he gave his address as Room D, 4/F, 119 Kweilin Street, Sham Shui Po.  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 15 June 2018 and sent to the address given by him to the court.  He had 14 days from that date to appeal the decision, which would have expired on 29 June 2018.  By way of summons dated 19 November 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 19 November 2018, the applicant provides no explanation for the delay.  However, in his summons filed on the same date he states that he did not receive the letter and was only made aware of the Order when he attended the Immigration Department.  The court notes that the address on the summons is Room D, 6/F, 1G Wing Lung Street, Cheung Sha Wan, which he says is his current address.  The applicant had not informed the court of this change of address.  Before me, the applicant submitted that he had moved just a few days after submitting his Form 86 and had thereafter moved several more times and cannot now remember where he was when the order was made.  He has no excuse for his failure to inform the court of his current address and accepts that he is responsible for not having received the Call-1.  In addition, he said that he reported to the Immigration Department weekly but that he had not been informed by them of the refusal of his application for judicial review until November 2018. I do not accept that.

Conclusion

7.The applicant has now been in Hong Kong since 2009.  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.  The reason this application is late is to be put entirely at his own door.  In any event he claims he reported on a weekly basis and there is no reason why it should have taken five months to seek to appeal the decision of this court.

8.In any event, I have considered his underlying application.  It has no merit as explained in the initial refusal of leave.  There were no grounds of review and there is no actual complaint before the court as to the decision to refuse leave.  Indeed, he specifically said that he had no complaint against the TCAB.  He has not advanced any grounds of appeal and has no complaint about the decision of this court.  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 19 November 2018 be dismissed.

The applicant appeared in person.