Wakalat Raza v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 991/2017

[2019] HKCFI 1388

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 991 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 11 February 2019, to appeal my decision of 14 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 attended in person and had the benefit of a Punjabi 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 28 July 2004 and thereafter overstayed.  He was repatriated to Pakistan in 2005 and returned to Hong Kong in 2006.  He submitted a non‑refoulement claim form on 14 March 2016 and was interviewed by the Director of Immigration (“the Director”) on 25 May 2016.  The Director dismissed his claim under all heads, by Notice of Decision on 31 May 2016 and by Notice of Further Decision on 19 September 2017.  He appealed those decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Bruce Henry, heard him on 28 September 2017.  The adjudicator refused his appeal on 8 November 2017.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 1 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 14 December 2018.

3.In the normal course of events, 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.

4.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.  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 as this forms part of the consideration of whether there is good reason to allow an extension of time.

5.The applicant claims that he did not receive the Order but gives no further explanation as to his delay.  The court file suggests that the Form CALL‑1 and Order were properly served upon the address given on the Form 86.  This is the same address the applicant uses today save that he has added “Flat A” to his previously listed address.  The applicant maintains that he only learnt of the refusal of leave when an officer from the Immigration Department contacted him to deal with his return to his home country.  This he says was in early January.  However, it took him until 30 January 2019 to inspect the court file and draft the summons which was then filed on 11 February 2019.  His explanation for that further delay was that Chinese New Year intervened.

6.The affirmation in support of his appeal was drafted by a third party as the applicant is illiterate.  It is not currently in proper form but in the event that matters not.  His outline grounds of appeal bear little relation to the proceedings at hand.  They are not identical to those relied upon in his claim for judicial review but they are similar in style and nature.  They clearly relate to the underlying claim.  The applicant has not provided any indication of how these grounds are made out or to what they refer.  They are not applicable to an appeal from my decision to refuse leave.  The applicant was unable to make any specific submissions as to the manner in which he felt this court had erred.

Conclusion

7.The applicant has now been in Hong Kong since 2004.  He has been interacting with various government agencies for the entirety of that period and accepts he received all necessary documents and notifications.  The explanation he has offered to this court, as to why he did not receive the Order is not acceptable.

8.In any event, I have considered inter alia his underlying application.  It has no merit as explained at some length in the initial refusal of leave.  The grounds of review advanced were generic and without reference to specifics as are the grounds he now relies upon for appeal.  There was no complaint before the court as to the decision to refuse leave.  He wishes the Court of Appeal to consider his situation afresh.  Having considered the length of delay, reason for the delay and underlying merits of his application as well as his proposed grounds of 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 of 11 February 2019 be dismissed.

The applicant appeared in person.