Sherpa Pemba v. Torture Claims Appeal Board / Non Refoulement Claims Petition Office

HCAL 1115/2017

[2020] HKCFI 2176

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1115 OF 2017

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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 16 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 did not attend court for the hearing 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.  The applicant entered Hong Kong on an unknown date prior to 28 October 2013, at which time he indicated his intention to make a non‑refoulement claim.  By 3 March 2015, the Immigration Department had written to him to give him notice of the deemed withdrawal of that claim[1].  The history of its contact with him up to that date is recorded therein.  He submitted a request to re‑open his claim on 31 August 2015 but without any explanation for his previous lack of cooperation.  He failed to respond to further communication from the Immigration Department and his application to re-open his claim was refused.  He lodged an appeal out of time against that refusal on 3 February and 18 May 2016 and submitted that he had not received the earlier correspondence which was, on the facts, patently untrue[2].  The Adjudicator refused his appeal on 17 August 2016 in a well-reasoned Decision.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 20 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 16 November 2018.  He had 14 days from that date to appeal that decision which would have expired on 30 November 2018.  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[3].

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 has been wholly dilatory throughout his dealings with the Immigration Department, Legal Aid Department and Judiciary.  He made no attempt to communicate with this Court or to ensure the Court had a current address.  Even if the Form CALL‑1 and Order had not been forwarded to an incorrect address, the applicant has been interfacing with the Immigration Department throughout the intervening period and I do not accept that he was not informed that his application for leave to seek judicial review had been refused.  It is more likely that, at the point the Immigration Department finally took steps to remove him from the jurisdiction, he had chosen to make this application for extension of time.  It is the duty of every litigant to give the Court an address to which correspondence or notice can come to his attention in a timely manner[4]. The consequences of any delay arising from failing to do so will fall upon the litigant.[5]

7.Even though the Court does not accept an explanation given for the delay by an applicant, the Court is required to examine whether there is any merit in the applicant’s appeal[6]. Whether there is any such merit will depend upon well‑established legal principles[7] 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 these 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[8].

8.In his affirmation in support, the applicant made no substantive submissions.  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.  There were no such grounds.

Conclusion

9.The applicant has now been in Hong Kong since at least 2013.  He has been interacting with various government agencies since that date to his advantage.  I take the view that he has sought at all times to manipulate the system.

10.As there is no basis upon which he says he now seeks leave to appeal my decision and as there was no complaint before the Court as to the decision to refuse leave, I can only presume that the applicant 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.