KHAN AJMAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 112/2018

[2020] HKCFI 2236

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 112 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 17 December 2019 to appeal my decision of 16 November 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 legally on 21 May 2014 through Lo Wu but was refused permission to land.  He submitted a non‑refoulement (“NRF”) claim on 16 June 2014 and was interviewed by the Director of Immigration (the “Director”) on 14 July 2014.  The Director dismissed his claim under all heads, by Notice of Decision on 12 August 2014 and by Notice of Further Decision on 17 January 2017.  He appealed those Decisions to the Torture Claims Appeal Board (the “TCAB”).  The adjudicator of the TCAB, Mrs Helena Lee (the “Adjudicator”), heard him on 30 December 2014 and 17 November 2017.  The Adjudicator refused his appeal on 6 February 2015 and 8 December 2017 respectively.  

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 24 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 16 November 2018.  He had 14 days from that date to appeal that decision which would have expired on 30 November 2018.  By way of summons dated 17 December 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 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 accepted he was late. He maintained he had intended to return to Pakistan but changed his mind because of the real risk to his safety.  By that, I take it that he accepted that he received the correspondence from the Court in the proper manner. He has provided no other information and, as he did not attend court, I have no other information. 

7.  The explanation given for the delay cannot be accepted. To do so would open the flood gates for all such applicants to say that they had intended to leave but had thereafter changed their minds, thereby gaining a significant period of delay.  The Court is nevertheless required to examine whether there is any merit in the applicant’s appeal[2].  That does not include some suggestion by the applicant that he has a new or continuing threat against him.  Whether there is any merit in his appeal 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 question for the Court is whether the 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[4]. 

Conclusion

8.  The applicant has now been in Hong Kong since 2014. He has been interacting with various government agencies since that date.  The explanation he has offered to this Court, that he intended to leave and has subsequently changed his mind, is not an acceptable excuse to overcome the stringent timetable to appeal in judicial review.  If that were to be the case, then all applicants could rely upon a similar explanation for delay and stretch out their residence in Hong Kong until the very last minute.

9.  In any event, I have considered his underlying application.  It has no merit as explained in the initial refusal of leave. There were several grounds of review which were unsupported by particulars.  Nor was there any evidence to support them on the papers available to the Court. They were generic and identical to other grounds of review received by the Court.  This does not assist the applicant.  There was also no complaint before the Court as to the Court’s decision to refuse leave.  The applicant wishes the Court of Appeal to consider his NRF claim afresh.  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 17 December 2019 be dismissed.