RE CAMARA ABOUBACAR

HCAL 574/2019

[2022] HKCFI 1841

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 574 OF 2019

___________________

___________________

___________________

D E C I S I O N

___________________

Introduction

1.  This is an application dated 14 April 2022 to appeal my decision of 15 March 2022 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 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 lawfully on 3 October 2009 but thereafter overstayed. He was arrested on 20 October 2009. He submitted a non-refoulement (“NRF”) claim on 9 December 2014 and was interviewed by the Director of Immigration (the “Director”) on 6 February 2015. The Director dismissed his claim under all heads, by Notice of Decision on 8 May 2015 and by Notice of Further Decision dated 10 February 2017. The adjudicator of the TCAB, Mr Wesley Wong, considered that appeal under s37ZT of the Immigration Ordinance, Cap 115 and refused it on 29 August 2016. The applicant took no action in respect of that refusal. On 28 April 2017, the applicant sought to appeal the Further Decision of the Director dated 10 February 2017. This was also late and was refused by the Adjudicator on 15 February 2019, after consideration of the same legislation in respect of late filing.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 28 February 2019. This application was in respect of the refusal of the Adjudicator dated 15 February 2019 only and he 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 15 March 2022. He had 14 days from that date to appeal that decision which would have expired on 29 March 2022. By way of summons dated 14 April 2022, 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]. An extension of time will not be granted unless there is a real prospect of success[2].

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 other than to say that he wished to challenge the decision. The Court file suggests that it was properly served upon the address given to the Court, which is the same address the applicant uses today. The applicant maintains that he had difficulty dealing with the High Court Registry as he attended at court on the day after he received the Form CALL-1 but was told no assistance could be given to him with the appeal procedure. COVID-19 has caused some litigants considerable difficulty and the Court acknowledges that he may have had problems with navigating the High Court Registry during this period.

7.  Even if the Court accepts the explanation for the delay was a reasonable one, that is not the end of the matter. The Court is nevertheless required to examine whether there is any merit in the applicant’s appeal[3]. Whether there is any such merit will depend upon well‑established legal principles[4] 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. Because of the history of the applicant’s proceedings, he was not in a position to point to any grounds of review arising out of the actions of the Adjudicator, who had refused his appeals as being out of time in accordance with s37ZT of the Immigration Ordinance, Cap 115. Nor could he point to any criticism of this Court in refusing leave. His main complaint was that the system does not take account of the impecunious nature of an asylum seeker, who is not in a position to fund the filing of appropriate documents to pursue a 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[5].

8.  The applicant has now been in Hong Kong since 2009. He has been interacting with various government agencies since that date. The explanation he has offered to this court, as to why he seeks to appeal the decision to refuse leave does not give rise to any grounds of appeal, let alone grounds which may be arguable on appeal.

9.  In any event, I have considered his underlying application once more having had the benefit of hearing the applicant. His underlying claim has no merit as explained in the initial refusal of leave. He did not help himself by seeking to appeal the Decisions of the Director late on both occasions. The applicant provided no grounds of review and none could be ascertained from the papers. There was no complaint before this Court as to its 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 including but not limited to the background to these proceedings and the 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 14 April 2022 be dismissed.