S v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 160/2016

[2019] HKCFI 662

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 160 OF 2016

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R U L I N G

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1.  By a summons dated 3 December 2018, the applicant, S, in HCAL160/2016 applied for leave to appeal out of time against this court’s order dated 24 May 2017, and its judgment dated 29 May 2017, refusing leave for judicial review. The applicant filed a non‑refoulement claim under the Unified Screening Mechansism on 22 March 2014. The application was refused by the Director of Immigration on 4 August 2014 and by the adjudicator on 17 August 2016.

2.  On 2 September, he applied for leave to judicially review the decision by the director and adjudicator.  He requested an oral hearing.  A hearing was initially listed on 20 December 2016, however, the applicant applied for and was granted an adjournment.  The refixed hearing date was set down for 28 April 2017. The applicant was absent from the hearing.  Despite the applicant’s absence, his application was perused and considered on the documents, and having considered the merits of his application, the application for an extension of time to judicially review the director’s decision and leave for judicial review of the adjudicator’s decision was refused.

3.  The applicant is therefore applying for leave to appeal against my decision of the order of 24 May 2017, approximately a year and half out of time.  In his very brief affirmation attached to his summons for leave to appeal out of time, he says “I never received the judgment or order of the judge and since I have been detained, I had no means to seek legal advice; please allow this application”. The affirmation dated 3 December 2018, he signs and confirms he is detained at Castle Peak Bay Immigration Centre, Tuen Mun. 

4.  An applicant may appeal as of right an interlocutory order pursuant to Order 53, rule 3(4) within 14 days of the decision.  He requires and seeks leave to extend that time to appeal against the order.  He has appeared before me today and he claims that he did not know about the order or the judgment, or the hearing which was the judicial review hearing on 28 April 2017. 

5.  In short, he says the address on the Form 86 applying for leave for judicial review was his friend’s address and not his, and although he asked his friend to put his address, his friend did not and the friend put his own address.

6.  The reason why his friend’s address was put down on the Form 86 was because the applicant did not know how to file a judicial review form, and thus relied on his friend.  In brief, his friend never informed him of the judicial review hearing on 28 April 2017 and never gave him the order or the judgment dated 24 May and 29 May 2017. 

7.  During this hearing, I asked him about a letter which the court had received from the applicant.  That letter was dated 15 December 2016.  That letter was the letter by the applicant, who confirmed his signature on the letter, and his mobile phone number, that he was requesting for an adjournment of the original judicial review hearing set down for 20 December 2016.  He admitted that his friend had told him of the upcoming hearing, and he admitted he sought an adjournment of the judicial review hearing originally dated 20 December 2016. He admitted he had been informed by the clerk that his application had been granted and the hearing had been adjourned. 

8.  On the very same date, that is, 16 December, the court had sent a letter to the applicant to the very same address, giving him the new hearing date, of the refixed hearing date, of 28 April 2017 at 10 am.  He said his friend never told him of the hearing date.  Further, he also said his friend never gave him the order or the judgment. 

9.  Firstly, the correspondence address that the applicant gave to the court was correct, in that the applicant received the original correspondence.  It is the applicant’s duty to inform the court of any change of address.  This was not done.  There was in fact no change of address, the address remained the same, and this was the address that the court was able to contact him originally.  The fact that his friend did not give him the order or the date of the hearing or the judgment is not the responsibility of the court.  In any event, the court was able to contact him at this address.  The fact that he did not receive the order, so he says, or the judgment, is of no fault of the court, but of himself.  Blaming his friend for not receiving the order is not a reason why this court should entertain his application. 

10.  Furthermore, in support of this application for extension of time, the applicant has stated no grounds of appeal.  I had asked him in this hearing what are the grounds of his appeal.  He says, “I still have problems in my country.  That is why I appeal.”  He had nothing more to say.  He does not give any reasons why my decision was unfair and unreasonable.  There is no criticism of my decision at all.  There is, therefore, no merit, nor any real prospect of success in his intended appeal.  There are essentially no grounds of review, nor any complaint of my decision to refuse leave.

11.  Having considered the length of delay, his lack of merit in his application, the fact that the court was able to contact him at the address he gave in his Form 86, his application is refused and it would not be in the interests of justice to grant an extension of time. 

12.  The applicant’s summons dated 3 December 2018 is dismissed.