RE MD YAZDANI

HCAL 958/2017

[2021] HKCFI 2253

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 958 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 18 June 2021 to appeal 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 attended the Court without the benefit of an interpreter and at that stage asked to be provided with one despite the fact that he speaks good English and his written English is immaculate.  The case was therefore adjourned in order for a suitable interpreter to be found and we proceeded thereafter with 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 lawfully on 21 November 2013 but thereafter overstayed.  He was arrested on 23 December 2013.  Between that date and 24 April 2017 when he submitted a non-refoulement (“NRF”) claim he was before the courts three times and served terms of imprisonment.  He was interviewed by the Director of Immigration (“the Director”) on 10 May 2017.  The Director dismissed his claim under all heads, by Notice of Decision on 16 May 2017.  He appealed those Decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Ms Betty Kwan refused his appeal on 1 September 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 18 June 2021, 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 stated in his Affirmation that he was in prison but no more.  The chronology of events appears to be that after his latest term of imprisonment in 2017, he had been detained at Castle Peak from where he submitted his Form 86.  He was released from Castle Peak in February 2018, and gave an address to the Immigration Department which he did not use.  He did not inform this Court of his actual address and the only address this Court had was the one provided by the Immigration Department.  In July 2018, prior to the decision of this Court in December of 2018, the applicant was arrested once more on a charge of robbery. He was detained at Lai Chi Kok until his trial at the High Court under HCCC 237/2019, which he said took place in May 2021 and under which he was acquitted.  His detention at Lai Chi Kok would account for him not receiving the Order of the Court in December 2018 but, he would not have received it in any event because he had not been honest with Immigration about where he was living.  He maintains he had no notice of the refusal of this Court to grant him leave to apply for judicial review until after the Director of Immigration decided to detain him once he had been released after his trial. He is now, once more, detained at Castle Peak and in imminent danger of being returned to India, hence the application for extension of time to seek leave to appeal the decision.

7.  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]. The consequences of any delay arising from failing to do so will fall upon the litigant[3]. However, the Court can understand how it may have come to pass that the relevant authorities did not pass on the Form CALL-1 or Order when he was remanded in custody.  Having said that, the applicant did not seek to progress his application whilst on remand despite having the services of legal aid throughout the period of his detention.  The Court took some time to explain to the applicant the relevant considerations under judicial review.  It was at this point the applicant stated that he had still not had sight of the Form CALL-1 or Order.  He maintained that the Immigration Department had informed him of the decision but not provided him with a copy.  He accepted that he could not therefore point to any part of that decision to make out his submission that it was either unfair or unreasonable.  The Court provided the applicant with a copy of the relevant document and provided him with an opportunity to review it with the aid of the interpreter.  The Court then explained the principles of judicial review again and gave the applicant the opportunity to identify where the Court had erred.

8.  Even if the Court did accept that the 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[4].  The applicant was provided with an opportunity to address this.  He submitted that he wished to be heard by the Court of Appeal because his father had recently been shot and killed and it was dangerous for him to return home as his father had only been killed because the assailants had been looking for the applicant.  This seemed to overlook the obvious fact that his father could have simply stated that his son was in prison in Hong Kong, but in any event his submissions contradicted (on many levels) his earlier case before the TCAB.  Despite the sad demise of his father, his case had not altered in any respect.  He also submitted that he had been remanded for a considerable period of time before his trial for robbery and he should be allowed out into the community to deal with his affairs.

9.  Whether there is any merit in the submissions of the applicant 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 these submissions truly seek to review the exercise of a judicial function and in so doing indicate a reasonable prospect of success in the intended appeal[6].  They do not do so.

10.  In any event, and because of his submissions in respect of his father’s death, I have considered his underlying application and the possibility that his situation in India may have altered for the worse as a result.  It does not do so.  His case has no merit as explained in the initial refusal of leave.  There were no grounds of review of the TCAB other than it was unfair and unreasonable and none could be ascertained from the papers. There was no complaint before this Court other than it was unfair and unreasonable to refuse leave.  The applicant made it clear that he wishes the Court of Appeal to consider his situation afresh.  This is his sole reason for his appeal.

11.  Having considered the length of delay, which was substantial, the reason for the delay, and the lack of underlying merit to his application, it would not be in the interest of justice to grant an extension of time in all the circumstances of this case.

12.  The applicant’s summons filed on 21 June 2021 be dismissed.