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

HCAL 170/2018

[2019] HKCFI 2048

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 170 OF 2018

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Before: Hon Campbell‑Moffat J in Chambers

Date of Hearing: 16 August 2019

Date of Decision: 16 August 2019

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D E C I S I O N

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Introduction

1.This is an application dated 20 June 2019 to appeal 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 court with the assistance of a Punjabi interpreter although he does speak some limited English.

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 18 March 2016 and was arrested the same day.  He submitted a non‑refoulement claim form on 24 May 2016 and was interviewed by the Director of Immigration (“the Director”) on 24 June 2016.  The Director dismissed his claim under all heads, by Notice of Decision on 14 July 2016 and by Notice of Further Decision on 22 March 2017.  He appealed those decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Wesley Wong (“the Adjudicator”), heard him on 13 December 2017.  The Adjudicator refused his appeal on 23 January 2018.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 5 February 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 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 20 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.  

6.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 (but not all) of the consideration of whether there is good reason to allow an extension of time.  He did not do so by way of supporting affirmation.  Before the court today, he claims he did not receive the Order on time because he had moved into his new address in March 2019.  He had relied upon his friends to look out for any correspondence for him.  They did not give him the correspondence from the court and he found out about the refusal of leave from the Immigration Department when he reported on 14 June 2019.  The court file suggests that it was properly served by registered post upon the correct address given at that time. 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].  The consequences of any delay arising from failing to do so will fall upon the litigant[2].

7.The applicant was late by some 36 days.  He maintains that as he was already late by the time he knew of the decision, which was on 14 June, he sought help in order to make an application for extension of time.  This he eventually did on 20 June 2019.  Even if the court does accept the reasons given for the delay, the court is required to examine whether there is any merit in the applicant’s appeal[3].  The applicant was asked but could not provide any grounds for his appeal.  He was refreshingly honest and stated that he did not want to be imprisoned by the Immigration Department and sent home to Pakistan.

8.The applicant understood 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 cannot 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.  The applicant could not do so.

Conclusion

9.Even though the applicant’s delay must be placed at his own door, the court is required to consider whether the applicant has an arguable appeal, which necessitates a further consideration of the underlying merits of his claim.  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.  There was no complaint before the court as to the decision to refuse leave.  The applicant wishes the Court of Appeal to consider his situation afresh in order to delay the inevitable.  Having considered the length of delay, reason for the delay, underlying merits of his application and 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.

10.The applicant’s summons dated 20 June 2019 be dismissed.

The applicant appeared in person.