Madbar Sohel v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 797/2017

[2019] HKCFI 1120

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 797 OF 2017

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D E C I S I O N

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Introduction

1.This is an application filed on 15 March 2019, to appeal my decision of 24 August 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.  The applicant appeared in person with the assistance of a Bengali interpreter.

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 15 December 2013 and was arrested by the police on the same day.  He submitted a non‑refoulement claim form on 26 January 2016 and was interviewed by the Director of Immigration (“the Director”) on 6 April 2016.  The Director dismissed his claim by Notice of Decision on 19 May 2016 and by Notice of Further Decision on 3 March 2017.  He appealed those Decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Tam Kwok‑wah, Jerry, heard him on 3 April 2017.  The adjudicator refused his appeal on 17 October 2017.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 23 October 2017 and 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 24 August 2018.  He had 14 days from that date to appeal that decision, which would have expired on 7 September 2018.  By way of summons filed on 15 March 2019, he now seeks leave to appeal out of time.  He is significantly out of time.

4.Under Order 59, rule 21(1)(g), an applicant does not require leave to appeal against a CFI judge’s refusal to grant leave to apply for judicial review.  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.  The applicant’s summons and affirmation in support has been professionally prepared but does not provide any explanation for why he is out of time, nor does it allude to how he came to be made aware of the decision of this court.  It does state that he was detained at the Castle Peak Bay Immigration Centre (“CIC”) but does not explain the circumstances of that detention.

6.In answer to questions from the court, the applicant explained that on 24 August 2018, he was serving a period of imprisonment of 22 months for taking up employment without the permission of the Director and that is why he was not notified of the decision of this court. That sentence appears to be a longer than normal sentence but the applicant denied being charged with any other offences at the same time and maintains that he has no other criminal record.  The current summons indicates that the applicant’s address was CIC as he had been detained in CIC since his release from prison on 9 February 2019.  In court today, he has given his address as Flat 8, 4/F, On Fook Building, 48‑72 Tai Tong Road, Yuen Long.  This is the same address given on the Form 86 in October 2017.  The applicant says that he had lived at that address with his wife in October 2017, but that he was arrested shortly after he submitted his Form 86 and she moved to another flat elsewhere and therefore she did not receive the Form CALL‑1 or Order dated 24 August 2018.  However, he says, quite by coincidence, that they moved back to exactly the same room in the same building as he had previously been renting just two weeks ago.  I do not accept that.  I do not believe the applicant has been full and frank with the court.  When asked when, on his account, he finally obtained a copy of the Form CALL‑1 and Order, he was evasive to the point that he suggested he had managed to file the summons and affirmation in support of his request for an extension of time without ever having seen the Form CALL‑1 and Order.  When it was explained to him that could not possibly be the case as he had made specific complaints about the decision of this court, he then said a friend called Amandeep had helped him prepare what can only be described as a professional summons and affirmation.  He still failed to specify how he came to be in possession of a copy of the Form CALL‑1 and Order on his own account.

7.In his affirmation in support of this application for an extension of time to appeal, the applicant complains that the decision of this court to refuse leave to judicially review the TCAB was unfair; the applicant should have been given an opportunity to clarify the situation in his country and the court heavily relied upon the Country of Origin Information (“COI”) referred to by the Director.  Further, he complains that he was unaware of the 14‑day time limit because he was not legally represented.  Given the fact that the applicant told the court he had not seen the Form CALL‑1, the court asked him to make good his complaint in respect of the COI.  He could not.  Indeed, he accepted that the Director had considered the political situation in his country and the conflict as between the Awami League and the Bangladesh Nationalist Party and that this was the main issue he relied upon.  He did not allude to any other COI which should have been relied upon.  The summons also contains a suggestion that the applicant wished to advance a new sole ground of appeal.  He was asked to say what that was.  He could not.  He did not have one.  He simply wanted his case to be looked at afresh.

Conclusion

8.The applicant has now been in Hong Kong since 2013.  In that period he has communicated satisfactorily with the relevant authorities sufficient to progress his claim to judicial review and he has clearly had assistance with that.  Thereafter, he appears to have done nothing to progress that application between 23 October 2017 and 15 March 2019, albeit he was in prison for part of that time and thereafter detained at CIC.  He may have been given some credit for that if he had not suggested that despite being informed his leave application had failed, he had never seen the Form CALL‑1 or Order.  He would not accept that the Director had informed him of his refusal of leave when he was transferred to CIC.  The court does not know how he says he obtained a copy of the Form CALL‑1.  The explanation he has offered to this court, as to why he did not receive the Order is not acceptable.  I do not accept that his wife, heavily pregnant and about to be on her own in a strange country, moved to a different flat in order to give birth and then, quite by chance returned to exactly the same flat two weeks before this hearing.  I believe he did nothing upon receipt of the Form CALL‑1 because he was detained and saw no reason to take action.

9.Notwithstanding that, I have considered his underlying application.  It has no merit as explained in the initial refusal of leave.  There were no grounds of review advanced for this court to consider, yet this court considered the papers carefully at that time to see if there were any grounds upon which leave could be granted.  There were not.

10.This is an application for extension of time to appeal and it should only be given if there is good reason so to do.  An appeal against a refusal of leave to apply for judicial review is not an occasion for the Court of Appeal to examine the decision of the TCAB afresh.  An appellate court is concerned with the decision of this court when dealing with the grounds of review placed before it.  The Court of Appeal will only interfere with that decision if this court has erred in law, failed to take account a relevant matter or is otherwise plainly wrong[1]. The complaint before this court as to the decision of this court to refuse leave has not been made good even in the most basic of forms.  Indeed, I do not believe it is the applicant’s complaint and that it is likely someone else has made up the complaint for the purposes of this application.  Although the applicant indicated there was a “new and sole” ground of appeal, he did not know what it was.  Again, I suspect someone else has made that up for him.  The applicant merely wishes the Court of Appeal to consider his situation afresh. That is not its function in judicial review.

11.Having considered the length of delay, the reason given for the delay, the underlying merits of his application and the basis of his appeal, it would not be in the interest of justice to grant an extension of time in all the circumstances of this case.

12.The applicant’s summons filed on 15 March 2019 be dismissed.

The applicant appeared in person.