RE ELYAS

HCAL 421/2019

[2022] HKCFI 3716

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 421 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 28 September 2022 to appeal my decision of 14 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 but showed an unwillingness to engage.

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 10 April 2016 but thereafter overstayed. He submitted a non-refoulement (“NRF”) claim on 30 April 2018. He was interviewed by the Director of Immigration (the “Director”) on 23 May 2018. The Director dismissed his claim under all heads, by Notice of Decision on 28 May 2018. He appealed that Decision to the Torture Claims Appeal Board (the “TCAB”). The adjudicator of the TCAB, Mr Paul Stephen Fisher, refused his appeal on 28 January 2019.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 14 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 14 March 2022. He had 14 days from that date to appeal that decision which would have expired on 28 March 2022. By way of summons dated 28 September 2022, he now 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 gave no reason within his Affirmation as to why this application is out of time. The Court file suggests that his current address is different from the one the Court had on file. The applicant did not update his current address with the Court. In court, the applicant refused to engage in why his application was late. 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[3]. The consequences of any delay arising from failing to do so will fall upon the litigant[4].

7.  The applicant was unwilling to engage with the Court on the issue of judicial review and his appeal. The Court is nevertheless required to examine whether there is any merit in the applicant’s appeal[5] but this was impossible as there were no proper grounds of appeal and the applicant would not engage. Whether there is any merit, whether as a result of submissions or upon the papers, 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. In his written submissions appended to his summons, the applicant fails to address the delay and relies upon his complaints in respect of the decision of the TCAB. Even so these were very generalised comments and did not address the basic facts of his underlying application which was premised upon a car accident in which the applicant was responsible for the death of another citizen. The applicant ran away from Indonesia in order to escape his civil and criminal liability in his home country. 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[7]. They do not.

8.  The applicant has now been in Hong Kong since 2016. 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.

9.  In any event, I have considered his underlying application. It has no merit whatsoever, 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 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 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 28 September 2022 be dismissed.