RE SAMUEL

HCAL 560/2019

[2022] HKCFI 1818

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 560 OF 2019

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D E C I S I O N

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Introduction

1.  This is an application dated 22 April 2022, to appeal my decision of 9 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 failed to 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 lawfully on 27 July 2015 but was refused permission to land and therefore submitted a non-refoulement (“NRF”) claim by way of written representation on the same date. His NRF claim was submitted on 8 September 2015. He was interviewed by the Director of Immigration (the “Director”) on 29 September 2015. The Director dismissed his claim under all heads, by Notice of Decision on 6 October 2015 and by Notice of Further Decision dated 15 February 2017. He appealed those Decisions to the Torture Claims Appeal Board (the “TCAB”). The adjudicator of the TCAB, Ms Betty Kwan, heard his initial appeal on 4 December 2015 and his subsequent appeal as to BOR2 on 24 January 2019. Both appeals were refused on 11 January 2016 and 22 February 2019 respectively.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 27 February 2019 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 9 March 2022. He had 14 days from that date to appeal that decision which would have expired on 23 March 2022. By way of summons dated 22 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 did not receive the letter informing him of the refusal. The Court file suggests that it was properly served upon the address given at that time, which is not the same address the applicant uses on his summons for an extension of time. Given that correspondence appears to have been sent to an old address, how then did the applicant know that his leave application had been refused in order to issue the current summons? That is a question left unanswered by reason of his failure to attend today. The Court therefore has no explanation of any kind as to why he failed to inform the Court of his new address or how it came to pass that he eventually received the Form CALL-1, albeit late. Whilst it is clear that a considerable period of time elapsed before the leave application was processed, it is nevertheless the case that a litigant has a duty to give the court an address to which correspondence or notice can come to his attention in a timely manner[3]. That includes updating the court from time to time. The onus is upon him. The consequences of failing to do so will fall upon the litigant[4]. The length of the delay in applying to appeal the refusal of leave is not great but the lack of explanation within his Affirmation and his failure to attend, lays that delay squarely at the door of the applicant.

7.  Even if the Court had been provided with an explanation and had accepted that explanation for delay was a reasonable one, it is nevertheless required to examine whether there is any merit in the applicant’s appeal[5]. Whether there is any such merit will depend upon well‑established legal principles[6] 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 applicant submitted within his Affirmation, that he should have been allowed to appear before the Court in order to clarify his case and explain the situation in India. However, he did not ask for his leave application to be heard orally and therefore it was heard on the papers, without requiring him to attend. There is no issue therefore that the Court acted in any way unfairly or unreasonably. He does not suggest that the Court erred in dealing with the matter on that basis but simply asked for the opportunity to be heard. Given that he proffered no grounds of appeal within his leave application, this Court is at a loss as to what the applicant intended to say. The question for the Court now is whether the applicant seeks to review the exercise of a judicial function when refusing leave to apply for judicial review and, in so doing, whether his grounds indicate a reasonable prospect of success in the intended appeal[7].

8.  The applicant has now been in Hong Kong since 2015. 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 had a continuing duty to keep the Court informed of his correspondence address and he did not do so. He has no excuse for being out of time.

9.  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. He did not request an oral hearing. It was properly considered on the papers. The causes of his problems in India have since disappeared and are now some eight years old. There is no complaint before the Court as to the manner of its decision to refuse leave. The applicant wished the court to hear additionally from him in person as to matters he has not indicated he disputes. The applicant now wishes the Court of Appeal to consider his situation afresh rather than address any short comings of this court. Having considered the length of delay, the lack of any reasonable explanation for the delay 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 22 April 2022 will be dismissed.