RE ATIF IKHLAQ

HCAL 426/2019

[2022] HKCFI 3715

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 426 OF 2019

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D E C I S I O N

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Introduction

1.  This is an application dated 4 November 2022 to appeal my decision of 29 August 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 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. He entered Hong Kong unlawfully on 14 September 2015 and surrendered to the Immigration Department on arrival. He submitted a non-refoulement (“NRF”) claim on 21 August 2017. He was interviewed by the Director of Immigration (the “Director”) on 15 September 2017. The Director dismissed his claim under all heads, by Notice of Decision on 10 October 2017. He appealed that Decision to the Torture Claims Appeal Board (the “TCAB”). The adjudicator of the TCAB, Mr Bruce Henry, refused his appeal on 22 May 2020.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 14 February 2019 to review a decision of 31 December 2018, which could not be traced. Although the applicant did not request an oral hearing, a hearing was listed for him to appear in person, which he did, with the assistance of an interpreter. The applicant appeared with no documentation and only a loose recollection of events. He denied having received the decision of the TCAB but accepted he had attended the hearing. He also denied that he had been informed by the Immigration Department of the result of that hearing despite an intervening period of some 30 months. Nevertheless, the applicant was allowed to amend his Form 86 and he was provided with a copy of the TCAB decision. He had no grounds of review and could point to no error which would support an application for judicial review. His application for leave to apply for judicial review was therefore refused on 29 August 2022. He had 14 days from that date to appeal that decision which would have expired on 12 September 2022. By way of summons dated 4 November 2022, he now 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. In his affirmation in support of this application, the applicant maintains that he did not receive the order. As he failed to attend, the Court was not in receipt of any other information. The Court file suggests that the Order of this Court was properly served upon the address provided by the applicant on the last occasion. No other address has been provided. If his non-attendance today is due to a change of address, that is of the applicant’s own making. 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 will fall upon the litigant[4].

7.  Even where the Court has been provided with no assistance from the applicant, the Court is 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. The question for the court in such circumstances is whether any 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[7]. As the applicant failed to attend, the Court has no basis upon which to exercise this review.

8.  The applicant has now been in Hong Kong since 2015. He has been interacting with various government agencies since that date and has previously suggested that he did not receive court documents. He has provided no explanation as to why he did not receive the order and act upon it within the allotted time which is not acceptable.

9.  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. Nor was there any 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.

10.  The applicant’s summons dated 4 November 2022 be dismissed.