Mamsa Tarique v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 711/2017

[2020] HKCFI 2270

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 711 OF 2017

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D E C I S I O N

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Introduction

1.This is an application dated 30 December 2019, to appeal my decision of 29 June 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 and had the benefit of an Urdu 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 lawfully on 15 July 2008 and was arrested on 15 July 2009 for overstaying.  He submitted a non‑refoulement claim on 16 June 2014 and was interviewed by the Director of Immigration (“the Director”) on 10 September 2014.  The Director dismissed his claim under all heads, by Notice of Decision on 22 September 2014 and by Notice of Further Decision 5 May 2017.  He appealed those Decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Ms Mary Yuen (“the Adjudicator”), dealt with the appeal on the papers.  The Adjudicator refused his appeal on 16 August 2017.  

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 3 October 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 June 2018.  He had 14 days from that date to appeal that decision which would have expired on 13 July 2018.  By way of summons dated 30 December 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 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 accepted he was late and gave no reason within his Affirmation or in Court as to why that was the case but claimed he had a sole new ground of appeal.  That is not correct.  He accepts it is not correct.  He seeks a review of the merits of his claim and, in parallel, suggests that he did not receive the court correspondence.  The Court file suggests that, at the time of his Form 86, he was detained at Castle Peak Bay Immigration Centre (“Castle Peak”) and the Court was not informed of any address subsequent to that date.  The Form CALL‑1 and Order were therefore sent to Castle Peak but was returned and the Court therefore had to make enquiries of the Immigration Department (the “ID”) to track him down.  In July 2018, the ID provided an address at Room C, 8/F, No. 207A Tung Choi Street, Yau Tsim Mong.  The Form CALL-1 and Order were therefore sent to that address and were not returned.  It is therefore presumed he received it on or about 18 July 2018.  It is the same address he used for his summons.  No reason has been provided for the delay between July 2018 and December 2019.  He maintains that he was not informed of the decision of this Court until December 2019 when he attended the ID. 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.As there is no explanation for the delay, which is substantial, the court is nevertheless 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 applicant suggests in his summons that he has a single ground of appeal, however within his affirmation in support he wishes to revisit his underlying claim which he maintains should have been considered by this Court and complains that he was not heard upon the matter.  The applicant did not previously request to be heard.  The question for the Court is whether the remainder of the 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.The applicant complains that this Court should have considered his underlying claim and did not provide an opportunity for him to clarify his case.  He says he was prejudiced by the fact that he did not read or write English.  As mentioned previously, the applicant did not request a hearing on the papers nor did he complain at that time that the TCAB Decision was concluded on the papers.  Secondly, I am very surprised that the applicant has no English given that he was born and educated in India, is a mature man and married to an Indonesian national.  In what language do they converse?  In any event he submitted that he had been travelling to Hong Kong since 2003 on business and has now been a resident of Hong Kong since 2008 and therefore must have some local Chinese and/or English and failing all else, some other Indian compatriots.  He makes no complaint about language issues within his Form 86.  Thirdly, the applicant submitted no grounds of review.  A consideration of the papers did not reveal any grounds of review.  The applicant misunderstands the jurisdiction of the court within the judicial review process.  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.  If there is any criticism of the manner in which they carried out their functions, then the applicant is bound to identify them. The applicant sought to have his claim heard afresh by this court in his original leave application.  This application seeks to do the same.  An appeal from this Court should not be founded upon any attempt to appeal the decisions of the Director or Adjudicator.  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 in some detail to the applicant when he appeared.

Conclusion

9.The applicant has now been in Hong Kong since 2008.  That is a very long time.  He has been interacting with various government agencies since that date.  He has also been interacting with other claimants and clearly has access to legal or quasi‑legal advice as is his summons is professionally drafted although somewhat misleading.  He was not completely frank with the Court when it sought to ascertain the background facts.  The explanation he has offered to this Court, as to why he did not receive the order is not believed and in any event acceptable.

10.In any event, 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.  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 30 December 2019 be dismissed.

The applicant appeared in person.