Iqbal Qamar v. Torture Claims Appeal Board / Non Refoulement Claims Petition Office

HCAL 254/2018

[2020] HKCFI 2047

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 254 OF 2018

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Before:  Hon Campbell‑Moffat J in Chambers

Date of Hearing: 26 August 2020

Date of Decision:  26 August 2020

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D E C I S I O N

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Introduction

1.This is an application dated 6 July 2020 to appeal my decision of 15 June 2020 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 did not attend court for the hearing despite confirming his attendance today and therefore I have considered the application upon the papers.

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 26 January 2016 and surrendered to the Immigration Department the next day.  He submitted a non‑refoulement claim form on 29 May 2017 as in the interim he had served a term of imprisonment.  He was interviewed by the Director of Immigration (“the Director”) on 21 June 2017.  The Director dismissed his claim under all heads, by Notice of Decision on 23 June 2017.  He appealed that Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Anthony WM Yuen (“the Adjudicator”), heard him on 6 November and 8 December 2017.  The Adjudicator refused his appeal on 18 January 2018.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 15 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 15 June 2020.  He had 14 days from that date to appeal that decision which would have expired on 29 June 2020.  By way of summons dated 6 July 2020, 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 2B(6).  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[1].

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 of the consideration of whether there is good reason to allow an extension of time.  The applicant gave no reason within his affirmation as to why he was late in seeking to appeal my decision.  The court file suggests that it was sent to the address given at the time that he submitted his Form 86 but has been returned to the High Court by the postal services.  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[2]. The consequences of any delay arising from failing to do so will fall upon the litigant.[3]

7.Even if the Court did accept an explanation given for the delay was reasonable, the Court is required to examine whether there is any merit in the applicant’s appeal[4]. Whether there is any such merit will depend upon well‑established legal principles[5] 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 question for the Court is whether any submissions truly seek to review the exercise of a judicial function and in so doing indicate a reasonable prospect of success in the intended appeal[6].

8.In his affirmation in support, the applicant submits that“there is a good ground of appeal, not necessarily considered at the stage of applying for leave to apply for judicial review”.  He did not substantiate it further.  In his application for leave to apply for judicial review the applicant maintained that the decision of the Adjudicator was unfair and unreasonable and that he was given insufficient time to obtain relevant evidence before the hearing.  As 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, 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.

Conclusion

9.The applicant has now been in Hong Kong since 2016. He has been interacting with various government agencies since that date. I have no explanation to why he left the correspondence unclaimed.

10.In any event, I have considered his underlying application.  It has no merit as explained in the initial refusal of leave.  He maintained that the decision of the Adjudicator was unfair, unreasonable and that he was given insufficient time to provide the relevant evidence, which is addressed within paragraph 11 of the Form CALL-1.  It had no merit.  There were no other grounds of review which could be ascertained from the papers and he did not complain of any specific procedural irregularity, unfairness or unreasonableness other than that already mentioned.  There was no complaint before this Court as to its decision to refuse leave.  The applicant merely 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, it would not be in the interest of justice to grant an extension of time in all the circumstances of this case.

11.The applicant’s summons dated 6 July 2020 be dismissed.

The applicant was not represented and did not appear.