RE NASEER TARAB UL HASSAN

HCAL 772/2017

[2021] HKCFI 1857

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 772 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 12 April 2021 to appeal my decision of 14 September 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 did not attend court for the hearing and therefore I have considered the application upon the papers.

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 on 15 April 2015 and surrendered to the Immigration Department on 16 May 2015.  He was arrested for taking up employment on 24 June 2016 and sentenced to a term of imprisonment of 15 months on 28 July 2016.  He was released on 22 April 2017.  He submitted a non‑refoulement claim on 8 June 2017 and was interviewed by the Director of Immigration (“the Director”) on 16 June 2017.  The Director dismissed his claim under all heads, by Notice of Decision on 21 June 2017.  He appealed that Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Ms Susan Pinto, heard his appeal on 15 September 2017 and refused it on 20 September 2017.  

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 17 October 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 14 September 2018.  He had 14 days from that date to appeal that decision which would have expired on 28 September 2018.  By way of summons dated 12 April 2021, some two years and six months later, 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.  In his affirmation in support, the applicant accepted he was late and gave no reason as to why that was the case other than to say that he did not receive the letter.  He maintained that he was informed of the decision by the Immigration Department but had not understood that there was a time limit on appeal.  The file suggests that when he originally filed for leave to apply for judicial review in October 2017, the applicant was detained at Castle Peak.  The correspondence enclosing the Order of the Court refusing leave was sent to that address but returned by the Immigration Department informing the Court that the applicant was no longer at Castle Peak.  Unhelpfully, given that the Director of Immigration has supervision over all Form 8 holders, the Department did not inform the Court of his forwarding address.  The Court therefore wrote to the Department on 20 September 2018 asking for an updated address.  The Department did not respond.  Nothing has happened since that date.  Whilst this Court is wholly unimpressed with the lack of cooperation of the Immigration Department, a review of the history of this matter indicates that the applicant was at all stages very much in control of his application and timely in his actions up to the point in time when he applied for judicial review.  Thereafter, he took no further steps to progress his application.  He has not admitted to the date on which he was informed of the decision of the Court but it is highly unlikely that the Immigration Department would have taken over two years to inform him of the decision or to arrange for his deportation.  In any event, 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]  There is no excuse for his lack of attendance today.

7.  Even if the Court did accept that the explanation given for the delay is a reasonable one, the Court is required to examine whether there is any merit in the applicant’s appeal[4].  In the absence of his attendance today, that is what the Court will do.  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 the applicant 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.  The applicant has now been in Hong Kong since 2015. He has been interacting with various government agencies since that date and he has been doing so promptly until he applied for judicial review.  The limited explanation he has offered to this court within his affirmation as to why he did not seek to progress his application is not acceptable.

9.  In any event, I have considered his underlying application.  It has no merit as explained in the initial refusal of leave.  There were limited grounds of review as outlined in paragraph 11 of the form CALL-1. Having perused the papers, this Court found they were without merit and explained why.  There has been no complaint to this Court as to its decision to refuse leave.  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 12 April 2021 be dismissed.