Islam Mohammad Shahidul v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1047/2017

[2019] HKCFI 1784

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1047 OF 2017

___________________

___________________

___________________

D E C I S I O N

___________________

Introduction

1.This is an application dated 31 May 2019 for appeal from my decision of 30 April 2019 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 was heard with the assistance of an 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 by boat on 28 June 2014 and was arrested the same day.  He submitted a non‑refoulement claim form on 17 February 2016 and was interviewed by the Director of Immigration (“the Director”) on 1 June 2016.  The Director dismissed his claim under all heads, by Notice of Decision on 4 July 2016 and by Notice of Further Decision on 31 March 2017.  He appealed those decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Ms Kay Ransome (“the Adjudicator”), heard him on 10 May 2017.  The Adjudicator refused his appeal on 14 November 2017.  

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 11 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 30 April 2019.  He had 14 days from that date to appeal that decision which would have expired on 14 May 2019.  By way of summons dated 31 May 2019, he 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 53, rule 3(4) of the Rules of the High Court 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.  The court is required to consider (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of success in the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

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 as this forms part of the consideration of whether there is good reason to allow an extension of time.  The applicant apologises to the court for being late but gives no further explanation as to why he was late save to say that he has language difficulties which delayed his filing of the appeal.  The court file suggests that the Order was properly served upon the address given at that time, which is the same address the applicant uses today and he accepts this.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner[1] and thereafter to act within the timeframe provided by the Rules of the High Court.  The consequences of any delay arising from failing to do so will fall upon the litigant[2].

6.Even if the court does accept the reasons given for the delay, which was not a great period of time, the court is nevertheless required to examine whether there is any merit in the applicant’s appeal[3].  The applicant wishes to have the merits of his case re-considered.  He has no complaint about the decision of this court.  There being no actual grounds of appeal, this court is forced to the conclusion that there is no reasonable prospect of success in the intended appeal.

7.It must be emphasised that the role of the court in judicial review is not to provide a further avenue of appeal from the decisions of the Director and the Adjudicator[4]. It follows that an appeal from this court should not be founded upon any attempt to appeal those same decisions.  It is an appeal from the decision of this court and the applicant should look to draft grounds of appeal on that basis.  Despite having this explained to the applicant, he was unable to do so.

Conclusion

8.The explanation the applicant has offered to this court for his tardiness is unfortunate and he has no grounds of appeal but I have, nevertheless re‑considered his underlying application lest there being something which was overlooked on the previous occasion and to ensure absolute fairness to the applicant.  Unfortunately for him, it has no merit as explained in the initial refusal of leave.  There were no grounds of review and none could be ascertained from the papers.  The facts relied upon by the applicant were very simple and did not evidence the basis for UNHCR protection.  Nor was there any complaint before the court as to this court’s decision to refuse leave and a review of that decision does not evidence any grounds.  The applicant merely wishes the Court of Appeal to consider his situation afresh as he does not want to go back to Bangladesh.  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 31 May 2019 be dismissed.

The applicant appeared in person.