AMRIT SINGH AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 838/2017

[2020] HKCFI 1522

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 838 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 22 May 2020 to appeal my decision of 19 December 2018, refusing leave to apply for judicial review.  The applicants had 14 days in which to apply to appeal that decision.  They did not do so.  They now require leave to extend time to appeal against that order.  The applicants attended in person with the assistance of a Punjabi interpreter.  The 1^st Applicant addressed the court on behalf of his family.

Procedural Background

2.  The applicants are claimants under Article 3 of the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment.  The 1^st, 2^nd and 3^rd applicants entered Hong Kong illegally on 29 October 2014.  They surrendered to the Immigration Department on 25 November 2014.  The 1^st and 2^nd applicants submitted non-refoulement claims on 27 January 2016 and were interviewed by the Director of Immigration (“the Director”) on 26 February 2016.  The Director dismissed their claim under all heads, by Notice of Decision on 20 June 2016 and by Notice of Further Decision on 11 July 2017.  They appealed those Decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Wesley Wong, heard them on 9 October 2017.  The adjudicator refused their appeal on 20 October 2017.  

3.  The applicants filed a notice of application on a Form 86 seeking leave to apply for judicial review on 3 November 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.  Their application for leave to apply for judicial review was refused on 19 December 2018.  They had 14 days from that date to appeal that decision which would have expired on 2 January 2019.  By way of summons dated 22 May 2020, they seek 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) 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 applicants accepted they were late and gave no reason within their Affidavit as to why that was the case.  They had at all times lived at the same address and could not provide any reason for why they had not received the CALL-1 Form.  The Court file suggests that it was properly served upon the address given at that time, which is the same address the applicants use today.  It may be that the applicants were not expecting the CALL-1 Form as they had attempted to withdraw their application for leave to apply for judicial review by means of a letter dated 7 December 2018.  This was because they had decided to return to India.  They still wish to return to India but would prefer a delay because of the current pandemic.  The applicants’ sole reason for applying for leave out of time is to extend time before they return to their home country.

7.  In considering an application for an extension of time, this court is required to examine whether there is any merit in the applicants’ appeal[2]. Whether there is any such merit will depend upon well-established legal principles[3] 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 applicants have been frank in submitting they have no grounds of appeal.  They do not seek to review the exercise of a judicial function, they merely want a stay of execution to return to India when the pandemic is under control.  As such, it is clear that there is not a reasonable prospect of success in the intended appeal[4].

Conclusion

8.  The applicants have now been in Hong Kong since 2014.  They have been interacting with various government agencies since that date.  The explanation they have offered to this court, as to why they did not receive the order is not acceptable but in any event they no longer wish to pursue their claim.

9.  I have considered their underlying application.  It has no merit as explained in the initial refusal of leave. There were no grounds of review and none could be ascertained from the papers. There was no complaint before the Court as to the decision to refuse leave. The applicants simply wish this Court and the Court of Appeal to allow them a little longer in Hong Kong.  Having considered the length of delay, reason for the delay and underlying merits of their 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 22 May 2020 be dismissed.