Re Tejedor Serna Jorge Andres

HCAL 423/2019

[2022] HKCFI 2461

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 423 OF 2019

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Before: Hon Campbell-Moffat J in Chambers

Date of Hearing: 5 August 2022

Date of Decision: 5 August 2022

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D E C I S I O N

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Introduction

1.This is an application dated 17 June 2022 to appeal my decision of 7 April 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 and was provided with an opportunity to have the Form CALL-1 interpreted to him once more.

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 12 July 2017 and thereafter overstayed. He submitted a non-refoulement (“NRF”) claim on 8 August 2018, whilst serving a sentence of imprisonment for drug trafficking. He was interviewed by the Director of Immigration (the “Director”) on 7 November 2018. The Director dismissed his claim under all heads, by Notice of Decision on 14 November 2018. He appealed the Decision to the Torture Claims Appeal Board (the “TCAB”). The adjudicator of the TCAB, Mr William Lam, refused that appeal on 17 January 2019.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 14 February 2019, 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 7 April 2022. He had 14 days from that date to appeal that decision which would have expired on 21 April 2022. By way of summons dated 17 June 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. Before the Court he explained he had given the court an incorrect address indicating he lived at 8 Tin Hau Road whereas he lived at 6 Tin Hau Road. He took full responsibility for this mistake. The applicant maintains that he only learnt of the refusal of leave when he reported to the Immigration Department in accordance with his recognizance but this had been on a six weekly basis and therefore he was already out of time. However, he submitted that he had immediately come to the court to file his current application. 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[3]. The consequences of any delay arising from failing to do so, or by failing to provide the correct address, will fall upon the litigant[4]. However, the court is prepared to give the applicant the benefit of the doubt in this occasion as he acted promptly once he was alerted to the issue.

7.Even though the Court accepts his explanation, it 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 and he was provided with a further opportunity to consider the Form CALL-1. Having done so, he submitted he had no complaint as to the decision save to ask for the matter to be reconsidered as he was in danger if he were to returned to his home country. The problem for the court is that this submission does not truly seek to review the exercise of a judicial function and in so doing indicate a reasonable prospect of success in the intended appeal[7].

8.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.

9.The applicant’s summons dated 17 June 2022 be dismissed.

The applicant appeared in person