Re Waseem Khan

HCAL 436/2019

[2022] HKCFI 1838

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 436 OF 2019

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Before:  Hon Campbell‑Moffat J in Chambers

Date of Hearing:  16 June 2022

Date of Decision:  16 June 2022

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D E C I S I O N

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Introduction

1.This is an application dated 14 April 2022 to appeal my decision of 9 March 2022 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 lawfully from Macau on 27 June 2015 but was refused entry and submitted a non-refoulement (“NRF”) claim by way of written representation on the next day and an NRF claim on 13 August 2015. He was interviewed by the Director of Immigration (the “Director”) on 26 August 2015 and 1 September 2015. The Director dismissed his claim under all heads, by Notice of Decision on 24 September 2015 and by Notice of Further Decision dated 14 February 2017. He appealed those Decisions to the Torture Claims Appeal Board (the “TCAB”). The adjudicator of the TCAB, Ms Betty Kwan, heard his initial appeal on 30 November 2015 and refused it on 8 December 2015. The applicant sought to appeal the Further Decision but was out of time. After consideration of his application for an extension of time, the Adjudicator refused it on 24 January 2019.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 15 February 2019, seeking a review of the Further Decision of the Director as to BOR 2 only. He 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 9 March 2022. He had 14 days from that date to appeal that decision which would have expired on 23 March 2022. By way of summons dated 14 April 2022, 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]. An extension of time will not be granted unless there is a real prospect of success[2].

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 as to why that was the case other than to say that he did not receive the letter. The Court file suggests that it was properly served upon the address given to the Court, which is the same address the applicant uses today. The applicant explained that he lives in an old building and that post can get lost. It is the duty of a litigant to not only give the court an address to which correspondence or notice can come to his attention in a timely manner[3] but also satisfy himself that he will receive such correspondence. The consequences of any delay arising from failing to do so will fall upon the litigant[4]. In this instance, the explanation provided by the applicant for not receiving the Form CALL-1 promptly is not accepted. The applicant also informed the court that he experienced difficulty processing his summons because of the restrictions within the High Court Registry. The Court accepts the difficulties arising from staffing in the High Court due to COVID-19 may have caused difficulties for unrepresented applicants.

7.For the avoidance of doubt, even if the Court did accept that explanation for the delay was a reasonable one, the Court is nevertheless required to examine whether there is any merit in the applicant’s appeal[5]. Whether there is any such merit will depend upon well‑established legal principles[6] 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. This was explained to the applicant. The applicant could provide no grounds of review either as to the exercise of the Adjudicator’s powers nor as to the exercise of this Court’s power when refusing leave. The question for the Court is whether these submissions truly seek to review the exercise of a judicial function as opposed to attempting to re-litigate his underlying claim, and in so doing, whether they indicate a reasonable prospect of success in the intended appeal[7].

8.The applicant has now been in Hong Kong since 2015. He has been interacting with various government agencies since that date. He was not able to address the Court at all on any criticism of the exercise of its function in judicial review. He accepted that he wished for the Court of Appeal to review his claim.

9.In any event, I have considered his underlying application. It has no merit as explained in the initial refusal of leave. He was given the benefit of the doubt as to which body he sought to leave to judicially review but no grounds of review were provided either then or now and none could be ascertained from the papers. There was no complaint before the Court as to its decision to refuse leave. Having considered the length of delay, reason for the delay and background facts as well as 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.

10.The applicant’s summons dated 14 April 2022 be dismissed.

The applicant appeared in person