Re Jum Alie

HCAL 1086/2017

[2021] HKCFI 1219

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1086 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 15 October 2020 to appeal my decision of 12 August 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 and therefore I have considered the application upon the papers.

Procedural Background

2.The applicant was a claimant under Article 3 of the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment under HCAL 188/2017, which is referred to in my original refusal.  The applicant sought to renew his claim under HCAL 1086/2017 but that application was refused by the Director of Immigration on 16 January 2017.  He sought to judicially review that decision by way of Form 86 on 15 December 2017.  That application was refused by this court on 12 August 2020.  He had 14 days from that date to appeal that decision which would have expired on 26 August 2020.  By way of summons filed on 15 October 2020, he seeks leave to appeal out of time.  

3.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].

4.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.  

5.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 submits that he did not receive the Order of 12 August 2020.  The address on the current summons is Rm 7, 11/F Queens Road West, Sai Wan, Sai Ying Pun.  This is not the address on his Form 86 which indicates he was resident at Castle Peak Bay Immigration Centre at that time.  On 10 August 2020, the Immigration Department notified the Court that his new address was Room D, 5/F, 27 Shan Tung Street, Mong Kok.  It was to that address that the Order was sent.  It was however returned to the High Court on 25 September 2020. At no stage has the applicant informed the Court of his current address until his summons for an extension of time to appeal filed on 15 October 2020.  It is therefore presumed that the applicant had been informed of the refusal of judicial review before this date presumably when an officer from the Immigration Department contacted him to deal with his return to his home country.  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].  

6.Even though the applicant did not attend and had not provided any explanation within his affirmation in support, 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.  As there were no submissions which sought to review the exercise of a judicial function and in so doing could indicate a reasonable prospect of success in the intended appeal[6], the Court cannot do so. As the role of the Court in judicial review is not to provide a further avenue of appeal on the merits 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 grounds.

Conclusion

7.The applicant has now been in Hong Kong since 2014.  He has been interacting with various government agencies since that date.  He provided no explanation to this court within the papers as to why he did not receive the order nor as to why he should be given leave.

8.In any event, I have considered his underlying application in respect of HCAL 1086/2017.  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 within the papers before the Court as to its decision to refuse leave.  Having considered the length of delay, the lack of explanation for the delay and the 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.

9.The applicant’s summons dated 15 October 2020 be dismissed.

The applicant, in person, absent.