HUSSAIN MUMTAZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1606/2018

[2020] HKCFI 2903

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1606 OF 2018

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BETWEEN

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D E C I S I O N

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Introduction

1.  This is an application dated 4 September 2020 to appeal my decision of 23 June 2020 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 the 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 illegally by boat on 17 August 2015.  He submitted a non-refoulement claim on 18 July 2017 and was interviewed by the Director of Immigration (“the Director”) on 8 August 2017.  The Director dismissed his claim under all heads by Notice of Decision on 9 August 2017.  He appealed those Decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Kevin Edward Ball (“the Adjudicator”), heard him on 9 May 2018.  The Adjudicator refused his appeal on 30 July 2018.  

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 10 August 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 23 June 2020.  He had 14 days from that date to appeal that decision which would have expired on 7 July 2020.  By way of summons dated 4 September 2020, 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 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].

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.  The applicant accepted he was late and gave no reason within his Affirmation as to why that was the case.  The Court file suggests that it was mailed to the address given at that time.  That is not the address the applicant uses today.  He submits that he changed his address at the beginning of the year but that he regularly checked the post at his old address.  He accepts that he did not inform the court of his new address.  He says he only found out about the refusal from the Immigration Department when he reported.  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[2] and thereafter to act upon it within the legislative timeframe. The consequences of any delay arising from failing to do so will fall upon the litigant.[3]

7.  Even although the applicant was late in making this application and has no excuse for so doing, the Court is required to examine whether there is any merit in the applicant’s appeal[4].  Whether there is any such merit will depend upon well-established legal principles[5] 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 question for the Court is whether any request truly seeks to review the exercise of a judicial function and in so doing indicate a reasonable prospect of success in the intended appeal[6]. 

8.  In Court, he maintained that he wished the Court of Appeal to reconsider his claim.  As the role of the Court in judicial review is not to provide a further avenue of appeal from the Decisions of the Director and the Adjudicator, it follows that an appeal from this Court should not be founded upon any attempt to appeal those same decisions.  The current application is to allow the applicant to appeal a decision of this Court and the applicant should look to draft grounds of appeal on that basis. This was explained in some detail to the applicant when he appeared.

Conclusion

9.  The applicant has now been in Hong Kong since 2015. He has been interacting with various government agencies since that date.  He has provided no satisfactory explanation as to why he was late in filing this leave application.  I have nevertheless considered his underlying application. It has no merit as explained in the initial refusal of leave.  There were no formal grounds of review and no arguable grounds could be ascertained from the papers.  Nor was there any complaint before the Court as to the decision to refuse leave.  The applicant merely wishes 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 dated 4 September 2020 be dismissed.