SAKIB AHMED alias MD SAKIB AHMED alias SHOHEL MD v. TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 954/2017

[2019] HKCFI 893

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 954 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 7 January 2019 for appeal from my decision of 4 December 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 was in person.

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 8 October 2001 and thereafter overstayed.  He submitted a Non-refoulement Claim Form on 2 November 2015 and was interviewed by the Director of Immigration (“the Director”) on 11 December 2015.  The Director dismissed his claim by Notice of Decision on 14 January 2016 and then by Notice of Further Decision on 10 November 2016.  He appealed those Decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Kevin Anthony Browne (“the Adjudicator”), heard him on 23 November 2016.  The Adjudicator refused his appeal on 17 November 2017.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 27 November 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 4 December 2018.  He had 14 days from that date to appeal that decision which would have expired on 18 December 2018.  By way of summons dated 7 January 2019, he seeks leave to appeal out of time.  The papers do not provide any explanation for the delay.

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 and was given it in the middle of December by someone else living in his building.  By way of explanation he maintains that he does have his own letter box but that the postman often places letters in the incorrect mailbox or sometimes drops them on the floor.  The applicant accepts that he knew that he was out of time at that stage but did not take out a summons to appeal out of time immediately because it was Christmas and because he approached someone to draft his summons, which appears to have been done professionally.

Conclusion

6.  The applicant has now been in Hong Kong since 2001, although he returned to his home country between 2003 and 2006.  He has been interacting with various government agencies for the entirety of that period and accepts he received all necessary documents and notifications at various addresses.  The explanation he has offered to this court, as to why he did not receive the Order is not acceptable.  Nor is it acceptable to delay further having been aware of the deadline for appeal.

7.  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.  There is no complaint before the court as to the decision to refuse leave.  The applicant wishes the Court of Appeal to consider his situation afresh as he is dissatisfied with the decision of the TCAB.  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 7 January 2019 be dismissed.