RE CAMARA SEYDOU

HCAL 1022/2017

[2021] HKCFI 1216

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1022 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 5 October 2020 to appeal my decision of 2 July 2020 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 without the benefit of an interpreter.  He spoke English fluently.

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 on 29 December 2012 but was refused entry as he was arrested for importing dangerous drugs.  He submitted a non‑refoulement claim on 6 July 2017 after release from prison and was interviewed by the Director of Immigration (the “Director”) on 26 July 2017.  The Director dismissed his claim under all heads, by Notice of Decision on 2 August 2017.  He appealed that Decision to the Torture Claims Appeal Board (the “TCAB”).  The adjudicator of the TCAB, Mr William Lam, did not allow his appeal by reason of late filing.  That decision was made on 6 October 2017.  

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 6 December 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 2 July 2020.  He had 14 days from that date to appeal that decision which would have expired on 16 July 2020.  By way of summons filed on 5 October 2020, 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 and gave no reason within his Affirmation as to why that was the case.  The Court file suggests that it was properly served upon the address given at the time by the Immigration Department as the applicant had not informed the Court of his current address.  The letter went to the same address as he now uses but the applicant says it was left lying around and he did not know that he had been refused until it was too late.  He does not now remember when that was and he admitted letting matters run before he decided to appeal out of 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[2].  The consequences of any delay arising from failing to do so will fall upon the litigant[3].  

7.  Even if the Court did accept that the explanation given for the delay was a reasonable one, which it does not, the Court is required to examine whether there is any merit in the applicant’s appeal[4].  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.  Throughout the hearing the applicant wished to have an adjournment for a lawyer to attend.  The Court explained the whole process to the applicant and then asked the applicant to outline his grounds of appeal.  The Court explained that if they appeared to have some merit then it would allow the adjournment but the applicant refused to even engage upon the issue of his grounds of appeal.  He clearly had none and merely wished to seek a further adjournment.  There being no missions, there was no basis for any review of the exercise of a judicial function which would indicate a reasonable prospect of success in the intended appeal[6].

8.  The Court believed the applicant wished to revisit his original claim.  As 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, 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 was explained in some detail to the applicant when he appeared.

Conclusion

9.  The applicant has now been in Hong Kong since 2012, albeit that he spent the first five years in prison.  He has been interacting with various government agencies since that date.  The explanation he has offered to this court, as to why he did not receive the order is not acceptable.  He was not believed.

10.  In any event, I have considered his 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 applicant merely wishes the Court of Appeal to consider his situation 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.

11.  The applicant’s summons dated 5 October 2020 be dismissed.