FATAJO ABDOULIE v. TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 60/2018

[2019] HKCFI 2031

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 60 OF 2018

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D E C I S I O N

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Introduction

1.  This is an application filed on 5 July 2019, to appeal my decision of 24 April 2019, 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 for the hearing without the benefit of an interpreter.  His English is very good.

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 legally on 19 July 2014 and thereafter overstayed.  He submitted a non‑refoulement claim form on 27 April 2017 and was interviewed by the Director of Immigration on 5 May 2017.  The Director dismissed his claim under all heads, by Notice of Decision on 15 May 2017.  He appealed that decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Ian Wingfield, heard him on 7 November 2017.  The adjudicator refused his appeal on 8 December 2017.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 11 January 2018 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 24 April 2019.  He had 14 days from that date to appeal that decision which would have expired on 8 May 2019.  By way of summons filed on 5 July 2019, 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 15.  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.

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 as this forms part of the consideration of whether there is good reason to allow an extension of time.  He claims he did not receive the Order on time because he had changed address on 15 March 2019 and had not informed the Immigration Department.  He usually reports to the immigration once per month.  When he went to the immigration during April 2019, he did not tell them that he had changed address.  When he returned on 22 May 2019, the immigration informed him of the Order of the court dated 24 April 2019.  At that time, he says he informed them of his change of address.  He says he returned to his old address on the same day but there was no such documentation.  He did not return to the immigration at that time.  He then waited until he returned once more to the immigration on 19 June 2019 and was told by them that he needed to attend the High Court to obtain a copy of the Order.  He did not do so immediately.  He says he attended court at some stage but the staff of the Registry were unhelpful and did not understand.  I do not accept that, especially as he has a good command of English.  The court file suggests that the Order and Form CALL‑1 was properly served upon the address given at that time, and should have been available to be retrieved by him if he had checked his mail even though he had changed address.  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[1]. It is not sufficient to lay the blame upon the immigration, as this applicant sought to do.  The consequences of any delay arising from failing to keep his contact details up to date, will fall upon the litigant[2].

6.  Even if the court does accept the reasons given for the delay, which it is not prepared to do on this occasion as it does not accept the applicant has been in the least bit truthful, the court is required to examine whether there is any merit in the applicant’s appeal[3].  In order to ascertain whether this was the case, the court explained the procedure at length and the difference between consideration of the merits of the claim and judicial review.  The applicant would not move away from his criticism of the immigration and the reason for the lateness of his application.  He had nothing to say about the way in which he was treated by the TCAB nor the way in which his application for leave to apply for judicial review was dealt with.  He advanced no basis whatsoever for judicial review.

7.  The question for the court is whether the submissions of the applicant indicate a reasonable prospect of success on appeal.  They do not.

Conclusion

8.  The applicant has now been in Hong Kong since 2014.  He has been interacting with various government agencies since that date and has a good grasp of English and is literate.  The explanation he has offered to this court, as to why he did not receive the Order is not acceptable.  Some of his explanation was simply disbelieved.  He took no responsibility upon himself for the position he is in.

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. There was no complaint before the court as to the decision to refuse leave. The applicant accepts that his goal is for 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 filed on 5 July 2019 be dismissed.