Galiza Gomer Dadis v. Torture Claims Appeal Board /Non Refoulement Claims Petition Office

HCAL 100/2018

[2019] HKCFI 1922

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 100 OF 2018

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Before: Hon Campbell Moffat J in Chambers

Date of Hearing: 30 July 2019

Date of Decision: 30 July 2019

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D E C I S I O N

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Introduction

1.This is an application dated 19 June 2019 for appeal from my decision of 24 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 court in person with the benefit 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 legally on 30 December 2014 and thereafter overstayed.  He was not arrested until 11 February 2015.  He submitted a non‑refoulement claim form on 25 April 2017 and was interviewed by the Director of Immigration (“the Director”) on 17 May 2017. The Director dismissed his claim under all heads, by Notice of Decision on 23 May 2017.  He appealed that decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mrs Sydelle Muling (“the Adjudicator”), heard him on 16 October 2017.  The Adjudicator refused his appeal on 16 January 2018.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 22 January 2018 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 April 2019.  He had 14 days from that date to appeal that decision which would have expired on 8 May 2019.  By way of summons dated 19 June 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.  He claims he did not receive the Order on time but gave no further explanation in his supporting affidavit.  The court file indicates that he gave an address on 2/F of Yen Dack Building, 93-113 Chun Yeung Street, North Point on his Form 86 dated 19 January 2018.  However, because his recognizance (Form 8) indicated a different address, the court wrote for confirmation from the Immigration Department (“the Department”).  On 22 June 2018, the Department gave his address as Room 5, 4/F, 137 Un Chau Street, Sham Shui Po.  It was to the Sham Shui Po address that the Order of this court dated 24 April 2019, was posted.  The address given by the applicant for the purposes of appeal is the same as his original address, ie the Yen Dack Building address.  He maintained he has been at this address since being in receipt of International Social Service assistance, which would date his residency from April 2017.  I gave the applicant the benefit of the doubt on this issue.  However, the applicant then maintained that he had only learnt of the Order of this court when informed by the Department at the time of his reporting.  He maintained initially that he reported on the first Friday of each month.  Later, he suggested it may be later than that and eventually, he suggested that he had been told of the Order of the court on 14 June 2019, when an officer had provided him with a printout of the Form CALL-1 of this court from the Judiciary website.  Thereafter, he came to court and filed his appeal on 19 June 2019.  His answer in this respect was unconvincing and evasive.

6.Even if the court were to accept the reasons given for the delay, the court is nevertheless required to examine whether there is any merit in the applicant’s appeal[1]. The applicant had no submissions in this regard.  There being no submissions, it is difficult for the court to find that these submissions indicate a reasonable prospect of success in the intended appeal.  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 on the underlying merits of the original claim for refugee status.  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.  This was explained to the applicant but he was unable to indicate any complaint.

Conclusion

7.Despite being sceptical about his reasons for delay in filing his appeal, the court has given the applicant the benefit of the doubt and then went on to consider his underlying application and whether there were any grounds of appeal.  His claim for refugee status has no merit as explained in the initial refusal of leave.  There were no grounds of review before the court and none could be ascertained from the papers.  Neither was there any complaint before the court today as to the decision to refuse leave. The applicant merely wishes the Court of Appeal to consider his situation afresh as he asks to be allowed to remain in Hong Kong.  Having considered the length of delay, reason for the delay, the underlying merits of his application and lack of 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.

8.The applicant’s summons dated 19 June 2019 be dismissed.

The applicant appeared in person.