MEHMOOD SAJID v. TORTURE CLAIMS APPEAL BOARD/ NON REFOULEMENT CLAIMS PETITION OFFICE

HCAL 279/2017

[2019] HKCFI 1249

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 279 OF 2017

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D E C I S I O N

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1.  The applicant is a torture claimant. His non-refoulement claim was refused by the Director of Immigration by way of a decision (“the Director’s Decision”) dated 2 November 2016.

2.  The applicant filed his notice to appeal out of time against the Director’s Decision on 28 November 2016.  The Torture Claims Appeal Board (“the Board”) refused the applicant’s application to appeal out of time the Director’s Decision. 

3.  The applicant sought leave to judicial review the Board’s Decision.  On 30 January 2018, I refused to grant leave to the applicant to apply for judicial review of the decision of the Board and my reasons to which I shall not refer are fully set out therein.

4.  By summons dated 29 March 2019, supported by an affirmation of the same date, the applicant now seeks an extension of time to appeal out of time against my decision of 30 January 2018. 

5.  Pursuant to Order 53 rule 3(4), the applicant had 14 days in which to appeal my decision.  He failed to do so.  The 14 day period to appeal my decision ended on 13 February 2018, hence he is late by about one year and one month with his intended appeal. 

6.  In considering whether to extend time for appealing against a refusal of leave to apply for judicial review, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.

7.  The applicant is late by more than one year.  In his supporting affirmation he explained his reasons for the delay is that he was detained at the Castle Peak Immigration Centre (“CIC”).  There are no further particulars.

8.  In the hearing before me for extension of time for leave to appeal to the Court of Appeal he informed me that he received my decision shortly after 30 January 2018.  He said he remembers receiving my decision at his home and at the post office.  At that time he was not detained in CIC, in his words he was “a free person outside”.  The reason for the delay of over one year he says is because: -

(i)   he is medically unfit as he is suffering from kidney stones;

(ii)   he is uneducated;

(iii)   he did not know what to do when receiving my decision;

(iv)   he asked people about the procedure but they did not help him; and

(v)   shortly after he received my decision he was detained. 

9.  At the hearing he informed me that he has been detained in CIC since 4 February 2019.  Plainly his reason for delay in applying for leave was not because he was detained in CIC as he was only detained in CIC approximately one year after the date of my decision. 

10.  I had enquired with him during the hearing whether he was at any time detained before 4 February 2019.  He said he was imprisoned for about eight and half months before his detention in CIC and upon release from prison he was immediately detained at CIC.  Counting back he would have been detained in or about May 2018.  From this time line the applicant lost his liberty approximately three months after the date of my decision. 

11.  Even if the applicant’s timetable is incorrect it is clear to me that the applicant was aware and had received my decision shortly after it was given.  As stated by him at the hearing, he received the decision and the sealed order shortly after as it was sent to his home address and he received it at the post office.  He therefore knew of the decision and did not lodge his appeal until one year later.  This is a serious delay.  I do not accept the reasons nor has he provided any valid explanation for such a considerable delay. 

12.  I turn next to consider the prospect of success of the applicant’s intended appeal which is a crucial factor in determining whether the Court should exercise its discretion to grant an extension of time for appeal.  

13.  In his affirmation he states that there is a good ground of appeal that was not necessarily considered at the stage for applying for judicial review. When asked about this ground he was unable to give me any particulars, he only stated that he is still facing problems back in his home country and his life was still in danger and he would like to submit new facts to the Board.  As he is now detained he cannot obtain this information and he needs more time to obtain this information so he can submit it for the Board’s reconsideration. 

14.  In my view, these grounds do not constitute a ground of appeal.  It is not the function of the Court in a judicial review or on appeal, to re-assess the non-refoulement claim or to review the claim.  In the absence of any particulars as to any error in my decision or why it was unreasonable or unfair, I am unable to see any prospect of success in his intended appeal.

15.  In the premises, the applicant’s application for leave to appeal out of time is refused and dismiss the summons.