Haldar Based v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 951/2017

[2019] HKCFI 717

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 951 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 27 December 2018 for appeal from my decision of 4 December 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 28 June 2014.  He submitted a non-refoulement claim on 19 April 2016 and was interviewed by the Director of Immigration (“the Director”) on 10 May 2016.  The Director dismissed his claim under all heads, by Notices of Decision on 31 May 2016 and 26 September 2017.  He appealed those Decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Hong Ka‑ho Arthur, heard him on 13 October 2017.  The adjudicator refused his appeal on 17 November 2017.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 24 November 2017, in which he gave his address as Room C, 6/F, 159 Ki Lung 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 4 December 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 18 December 2018.  By way of summons dated 27 December 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 27 December 2018, the applicant submits that the Order was in English, which he could not read.  However, in his summons filed on the same date he states that he was not made aware of the Order until he attended the Immigration Department and appears to be saying that he did not receive the Call-1 or Order.  The court notes that the address on the summons is Room D, 7/F, No 122 Fuk Wa Street, Sham Shui Po.  The applicant had not informed the court of this change of address.  He admits that he was not living at the Form 86 address but that he had a friend who was checking his mail and he did not receive it.  Before me, the applicant submitted that he had no complaint against the TCAB or this court but that he wished to have his stay extended as there were still troubles in his home country.

Conclusion

7.The applicant has now been in Hong Kong since 2014. 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.  He was notified promptly of the decision of this court to the address given on his Form 86 and did not inform the court of his new address.  He was ultimately informed by the Immigration Department but still took a further eight days to file his summons.

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.  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 27 December 2018 be dismissed.

The applicant appeared in person.