SULTAN ZAHID v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 41/2018

[2019] HKCFI 2387

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 41 OF 2018

________________________

________________________

________________________

D E C I S I O N

________________________

Introduction

1.  This is an application dated 15 August 2019 to appeal my decision of 24 April 2019 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 assistance of an interpreter.

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 illegally on 1 July 2013.  He submitted his initial torture claim form on 23 September 2013 and was interviewed by the Director of Immigration (“the Director”) on 11 December 2013, 9 January 2014 and 27 June 2017.  The Director dismissed his claim under all heads, by Notice of Decision on 29 June 2017.  He appealed that decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Wesley Wong (“the Adjudicator”), heard him on 3 November 2017.  The Adjudicator refused his appeal on 22 December 2017.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 9 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 24 April 2019.  He had 14 days from that date to appeal that decision which would have expired on 8 May 2019.  By way of summons dated 15 August 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 15.  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.

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.  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.  He claims he did not receive the Order on time but gives no further explanation.  The court file suggests that it was sent to the address given at that time, which was the same address the applicant used for his Form 86 application, but it was returned to sender.  He originally said that he had moved from that address some three months ago but the summons has the same address upon it and is dated 15 August 2019.  He then changed his stance and said it was two months ago and later suggested that he may have been at a different address.  The applicant maintains that he only learnt of the refusal of leave from an officer from the Immigration Department.  The fact he did not receive the Form CALL‑1 is entirely his own fault.  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[1]. The consequences of any delay arising from failing to do so will fall upon the litigant[2].

6.  Even if the court had accepted that the explanation given for the delay was reasonable (which it does not), the court is required to examine whether there is any merit in the applicant’s appeal[3].  Whether there is any such merit will depend upon well‑established legal principles[4] 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 submits that he does not wish to return to Pakistan.  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

7.  The applicant has now been in Hong Kong since 2013.  He has been interacting with various government agencies since that date as he was arrested upon entry.  He knows he has an obligation to notify the authorities of his address as a Form 8 holder.  The explanation he has offered to this court, as to why he did not receive the Order is not acceptable.

8.  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.

9.  The applicant’s summons dated 15 August 2019 be dismissed.