YOUNAS SHIRAZ v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1101/2017

[2019] HKCFI 282

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1101 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 5 October 2018 seeking leave to appeal out of time from my decision of 7 September 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 is unrepresented and attended Court for the hearing with the assistance 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 illegally on 13 January 2016 and surrendered to the Immigration Department on 20 July 2016.  He submitted a non‑refoulement (“NRF”) claim on 2 May 2017 and was interviewed by the Director of Immigration (“the Director”) on 23 May 2017.  The Director dismissed his claim under all heads, by Notice of Decision on 26 May 2017.  He appealed that Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Wan Kah‑ming, refused his appeal on 12 September 2017.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 19 December 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 7 September 2018.  He had 14 days from that date to appeal that decision which would have expired on 21 September 2018.  By way of summons dated 5 October 2018, 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 59, rule 2B 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 15.

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.  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.  He claims he did not receive the Order on time but gives no further explanation.  The Court file suggests that it was properly served on 7 September 2018 to the address given to the Court for the purposes of the Form 86 application i.e. the Castle Peak Bay Immigration Centre (“Castle Peak”).  He was no longer at this address. He had left Castle Peak in December 2017.  At that stage he went to an address known to the Immigration Department but not provided to the Court.  Enquiries were made by the Court to secure his current address.  On 20 September 2018, the Immigration Department provided his current address, which was: Flat D, 4/F, Block 1, Luen Fat House, Nos 16, 24, 32, 40 & 48 Ping Cheong Path, Yuen Long.  The applicant maintains that he was living at that address at the time but had not informed the Court of the address.  He confirmed he received the second letter but cannot now say when that was.

Conclusion

6.  The applicant has now been in Hong Kong since 2016.  He has been interacting with various government agencies for the entirety of that period.  The explanation he has offered to this Court, as to why he did not receive the Order is not acceptable.  It is incumbent upon the applicant to ensure he informs the Court of his correct address and he did not do so. 

7.  I have considered his underlying application and any reasons he may have on appeal against my refusal of leave. His underlying claim has no merit, as explained at some length in the initial refusal of leave.  There were no grounds of review and there has been 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 as he is unhappy with the decision of this Court and does not want to return to his own country.  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.

8.  The applicant’s summons dated 5 October 2018 be dismissed.