RE WEERASIRI NARAYANAGE WIJERATHNA

HCAL 424/2019

[2022] HKCFI 3494

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 424 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 24 October 2022 to appeal my decision of 9 March 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 attended court with the benefit 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 unlawfully on 16 September 2007 and was immediately arrested. He submitted a non-refoulement (“NRF”) claim by way of written representation on 27 September 2007 which was not pursued and ultimately deemed withdrawn. He submitted a Supplemental Claim Form on 17 April 2014. He was interviewed by the Director of Immigration (the “Director”) on 2 July 2014. The Director dismissed his claim on 14 January 2015. He appealed that Decision to the Torture Claims Appeal Board (the “TCAB”). The adjudicator of the TCAB, Ms Wong Hing-chun, refused his appeal on 23 February 2017.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 14 February 2019 which was out of time, 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 9 March 2022. He had 14 days from that date to appeal that decision which would have expired on 23 March 2022. By way of summons dated 24 October 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.

7.  The Order of this Court was initially sent to the applicant in care of the Castle Peak Bay Immigration Centre (“CIC”) on 9 March 2022 but was then sent to a private address on 15 March 2022, which was the address recorded with the Immigration Department. There was no affirmation or affidavit in support of the summons dated 24 October 2022 but it indicates that he is currently detained once more at CIC. The applicant maintained that at the time of the Order of this Court, he was in prison for a dangerous drugs offence. However, he had been informed of the decision on 28 March 2022 but did nothing whilst in prison. He was released on 9 June 2022 but again did nothing as he had been transferred to CIC and the staff in CIC would not help him. He said he wrote three letters to this Court, which have not been received and eventually asked a lawyer to assist him, who drafted the summons of 24 October 2022. The applicant therefore accepts he is out of time but is saying it is everyone else’s fault not his. 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].

8.  Even if the Court does accept that explanation given for the delay was a reasonable one, 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 applicant submits that he simply wishes to be released from detention and that if the Court cannot release him then he wants to go home but that the Immigration Department will not process him and has not explained what is happening to him. From his submissions, it appears that any suggested threat no longer exists and therefore his underlying claim is no longer maintained. He made no criticism of the order of this Court.

9.  The applicant has now been in Hong Kong since 2007. He has been interacting with various government agencies since that date. The explanation he has offered to this court as to why he did not receive the order and the failure of the Immigration Department to assist him is not accepted.

10.  In any event, the applicant wishes to return to Sri Lanka. I have nevertheless considered his underlying application. It has no merit as explained in the initial refusal of leave. It was out of time. There were no grounds of review or any explanation provided and none could be ascertained from the papers. There was no complaint before the Court as to the decision to refuse an extension of time. He accepts he was out of time but blames others for not coming to assistance. 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.

11.  The applicant’s summons dated 24 October 2022 be dismissed.