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

HCAL 40/2018

[2019] HKCFI 1926

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 40 OF 2018

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D E C I S I O N

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Introduction

1.  This is an application dated 15 May 2019 for appeal from my decision of 30 April 2019, 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 assistance of an interpreter although he does speak some limited English.

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 22 April 2014 and was arrested on 21 August 2014.  He submitted a non-refoulement claim form on 2 March 2016 and was interviewed by the Director of Immigration (“the Director”) on 27 May 2016.  The Director dismissed his claim under all heads, by Notice of Decision on 27 July 2016 and by Notice of Further Decision on 14 July 2017.  He appealed those decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Wesley Wong (“the Adjudicator”), heard him on 9 November 2017.  The Adjudicator refused his appeal on 15 December 2017.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 8 January 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 30 April 2019.  He had 14 days from that date to appeal that decision which would have expired on 14 May 2019.  By way of summons dated 15 May 2019, 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 15.  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.

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.  Even though he was late by only one day, the applicant nevertheless requires leave and his delay necessarily triggers an assessment of his overall appeal.

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 (but not all) of the consideration of whether there is good reason to allow an extension of time. He claims he did not receive the Order on time because he was in the process of changing his address.  The court file suggests that it was properly served upon the correct address given at that time.  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[1]. The consequences of any delay arising from failing to do so will fall upon the litigant[2].

7.  The applicant was late by just one day but this application brings into stark relief the complete lack of merit in both his appeal and in the underlying merits of his UNHCR application.  Even if the court does accept the reasons given for the delay, which was minimal, the court is required to examine whether there is any merit in the applicant’s appeal[3].  The applicant was asked but could not provide any reasons for his appeal.

8.  An applicant must understand that 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[4].  It follows that an appeal from this court should not be founded upon any attempt to appeal those same decisions.  It is an appeal from the decision of this court and the applicant should look to draft grounds of appeal on that basis.  This applicant could not do so.

Conclusion

9.  Even though the delay was minimal, the court is required to consider whether the applicant has an arguable appeal, which necessitates a further consideration of the underlying merits of his claim.  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 applicant wishes the Court of Appeal to consider his situation afresh.  Having considered the length of delay, reason for the delay, underlying merits of his application and grounds of appeal, 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 15 May 2019 be dismissed.