Iftikhar Ali v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 932/2017

[2019] HKCFI 2388

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 932 OF 2017

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BETWEEN

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Before: Hon Campbell-Moffat J in Chambers

Date of Hearing: 25 September 2019

Date of Decision: 25 September 2019

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D E C I S I O N

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Introduction

1.This is an application dated 23 August 2019 to appeal my decision of 29 November 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 court 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 illegally on 11 March 2014. He was arrested on 5 April 2014.  He submitted a non-refoulement claim form on 17 September 2015 and was interviewed by the Director of Immigration (“the Director”) on 23 December 2015.  The Director dismissed his claim under all heads, by Notice of Decision on 4 January 2016 and by Notice of Further Decision on 8 December 2016.  He appealed those decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr S J Geiser (“the Adjudicator”), heard him on 10 April 2017.  The Adjudicator refused his appeal on 3 November 2017.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 23 November 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 29 November 2018.  He had 14 days from that date to appeal that decision which would have expired on 13 December 2018.  By way of summons dated 23 August 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 accepted he was late.  The Form CALL-1 and Order were sent to the address on the Form 86 which is the same address as the one he presented to the court today, however, the applicant then admitted that it was not the address he resided at.  He had moved in with his girlfriend some time ago and had not informed the court of his change of address.  He has now married his girlfriend and does not reside at the address given.  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].

6.The court does not accept that the explanation given for the delay is reasonable but has nevertheless gone on to examine whether there is any merit in the applicant’s appeal[3].  Whether there is any such merit will depend upon well‑established legal principles[4] including the fact that the court in judicial review is not to provide a further avenue of appeal on the merits of the underlying claim.  The applicant submits in his professionally prepared affirmation in support that he has a good ground of appeal but does not indicate what it is.  That is because he clearly does not have one.  From beginning to end the applicant has been playing the system and waiting until the last moment in order to take any step.  He admitted that he had not sought to appeal until told the Immigration Department were going to have him removed.

Conclusion

7.The applicant has now been in Hong Kong since 2014.  He has been interacting with various government agencies since that date. The explanation he has offered to this court, as to why he did not receive the Order is not acceptable.  He has not been full and frank with the court.

8.I have considered his underlying application.  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 merely wishes the Court of Appeal to consider his situation afresh and to be given time to obtain unidentified documentation.  Having considered the length of delay, the lack of sound reason for the delay and the lack of underlying merit 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 23 August 2019 be dismissed.

The applicant appeared in person.