BACHITAR SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 999/2017

[2019] HKCFI 1098

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 999 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 19 February 2019, to appeal my decision of 11 December 2018 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 appeared in person and had the benefit of a Punjabi 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 legally on 12 February 2015 but was refused permission to land and thereafter was detained at Castle Peak Bay Immigration Centre (“CIC”).  He submitted a non‑refoulement claim form on 30 March 2015 and was interviewed by the Director of Immigration (“the Director”) on 21 April 2015.  The Director dismissed his claim by Notice of Decision on 24 April 2015 and by Notice of Further Decision on 3 November 2016.  He appealed those Decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Yu Cheuk‑man, heard him on 13 March and 18 September 2017. The adjudicator refused his appeal on 4 October 2017.  Thereafter, according to the applicant, he was arrested for illegally working and imprisoned for 15 months after which he was detained at CIC and not released until February 2018.  It was during this period of detention that the applicant eventually filed a notice of application on a Form 86 seeking leave to apply for judicial review on 1 December 2017, whilst still detained at CIC, 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 11 December 2018.  He had 14 days from that date to appeal that decision which would have expired on 25 December 2018 (plus public holidays).  By way of summons dated 19 February 2019, he now seeks leave to appeal out of time.

3.  Under Order 59, rule 21(1)(g), an applicant does not require leave to appeal against a CFI judge’s refusal to grant leave to apply for judicial review.  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 59, rule 2B 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.

4.  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.  He claims he did not receive the Order on time as he was detained at CIC until February 2018 and although he informed the Immigration Department of his new address, he did not inform the court.  He gives no further explanation save to say he assumed that either the Immigration Department or his private lawyers, would inform the court.  He was only made aware of the decision of this court when he reported to the Immigration Department, which he did on a six-weekly basis.  Thereafter he required the Form CALL‑1 to be translated and he engaged further lawyers.

5.  The current summons indicates that the applicant’s address is now Room C, 4/F, No 165 Temple Street, Yau Ma Tei. He has only resided at this address since September 2018.  The court file suggests that the Form CALL‑1 and Order were served upon the address given on the Form 86, which was CIC.  During his detention, the applicant had written twice to the High Court seeking his HCAL number in December 2017 and January 2018 and therefore knew that he could correspond with the court in respect of his application.  I do not accept that he was not able to correspond with the court in order to progress the matter after his release from CIC in February 2018.  If he had done so, the court would have had his current address. 

6.  In addition, the applicant complains that he had been told he would be given an opportunity to address this court on his leave application and is aggrieved that he had not been given such an opportunity.  He further submits that he wishes to be given an opportunity to make “further submissions” either in writing or in person.  I believe he must mean “submissions” and not “further submissions” as he had provided no grounds of review in support of his Form 86 and there were no submissions for this court to consider.  The applicant did not identify those further submissions within his affirmation in support of his application for extension of time to appeal.  He could not identify any grounds today even with the assistance of the court.

Conclusion

7.  The applicant has now been in Hong Kong since 2015.  The explanation he has offered to this court, as to why he did not receive the Order is not acceptable.  The applicant had taken the initiative to correspond with this court in 2017 and early 2018, it would have been appropriate for him, and incumbent upon him, to write to this court to progress his application if he wished to do so and to attend to obtain a copy of the court papers as was indicated in correspondence to him whilst he was still detained at CIC.  He does not appear to have done anything to progress his application for judicial review between February 2018 and February 2019. He accepts it was his responsibility to do so.

8.  Notwithstanding this, I have considered his underlying application.  It has no merit as explained in the initial refusal of leave. There were no grounds of review.  The applicant has not been able to advance any today.  An appeal against a refusal of leave to apply for judicial review is not an occasion for the Court of Appeal to examine the decision of the TCAB afresh.  An appellate court is concerned with the decision of this court when dealing with the grounds of review placed before it.  The Court of Appeal will only interfere with that decision if this court has erred in law, failed to take account a relevant matter or is otherwise plainly wrong[1].  There was no complaint before this court as to the decision of this court to refuse leave.  The applicant merely wishes the Court of Appeal to consider his situation afresh. That is not its function in judicial review.

9.  Having considered the length of delay, the reason for the delay and the underlying merits of his application for extension of time and the underlying merit of any appeal, 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 19 February 2019 be dismissed.