Sk Nizamuddin v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1035/2017

[2019] HKCFI 1109

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1035 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 11 February 2019, to appeal my decision of 19 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.  The applicant appeared in person and was assisted by a Hindi 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 legally on 6 December 2012 but was refused permission to land and thereafter repatriated.  He arrived once more on 15 June 2014 and overstayed.  He submitted a non‑refoulement (“NRF”) claim form on 15 February 2016 and was interviewed by the Director of Immigration (“the Director”) on 13 April 2016.  The Director dismissed his claim by Notice of Decision on 6 May 2016 and by Notice of Further Decision on 27 June 2017.  He appealed those Decisions to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr William Lam, heard him on 12 October 2017.  The adjudicator refused his appeal on 23 November 2017.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 8 December 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 19 December 2018.  He had 14 days from that date to appeal that decision, which would have expired on 2 January 2019.  By way of summons dated 11 February 2019, he now seeks leave to appeal 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.  He claims he did not receive the Order.  In his affirmation in support, he gives no further explanation.  He does not say how he came to be made aware of the decision of this court.  He now explains that he was residing at a temporary address in December 2018 and had not informed the court or the Director of that address.  In January 2019 he moved to a different address, which is identified on his summons but has since moved once more to an address in Temple Street.  He has yet to inform the Director of that address.  He fully accepts that the reason he did not receive the Form CALL‑1 and Order was as a result of his own wrong doing.  He finally came to know of the court’s decision when he signed on with the Director in January or February and thereafter obtained a copy of the decision.

Conclusion

6.The applicant has now been in Hong Kong since 2014.  It appears he was legally represented when he made his application for judicial review as the document submitted is professionally produced albeit the maker is not identified.  He accepts that it was for him to inform the court of any change of address.  The explanation he has offered to this court, as to why he did not receive the Order is not acceptable.  It was for him to ensure that the court could communicate with him promptly.  He does not appear to have done anything to progress his application for judicial review between December 2017 and 4 February 2019, when he searched the court file. He freely admits this.  He then took a further week to issue the summons dated 11 February 2019.  It is in the barest possible terms and simply states that he did not receive the decision.

7.Notwithstanding that, I have considered his underlying application for refugee status and his grounds of appeal.  His NRF claim has no merit as explained in the initial refusal of leave.  There were grounds of review, which I have summarised at para 10 of the Form CALL‑1.  They were without any specificity.  They were dealt with under paras 12 to 18.  He has further difficulty in that 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].  There is no complaint before this court as to the decision of this court to refuse leave.  The applicant was given an opportunity to verbalise and crystallise any such complaint and there was none.  The applicant merely wishes the Court of Appeal to consider his situation afresh as he does not wish to return to India at this time.  That is not its function in judicial review.

8.Having considered the length of delay, the reason for the delay, the underlying merits of his application for refugee status and the fact that the applicant has been unable to identify an issue susceptible to appeal, 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 11 February 2019 be dismissed.

The applicant appeared in person.