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

HCAL 640/2017

[2018] HKCFI 2779

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 640 of 2017

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R U L I N G

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Introduction

1.  This is an application dated 5 September 2018 for appeal from my decision of 2 March 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 did not 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 legally on 29 April 2012 and thereafter overstayed. He submitted a non-refoulement (“NRF”) claim on 29 July 2015 and was interviewed by the Director of Immigration (“the Director”) on 28 October 2015. The Director dismissed his claim under all heads, by Notices of Decision on 5 January 2016 and 3 February 2017. He appealed those Decisions to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr P.K.M. Longley , heard him on 5 May 2017. The adjudicator refused his appeal on 26 July 2017.

3.  The applicant filed a notice of application on a F86 seeking leave to apply for judicial review on 19 September 2017 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 2 March 2018. He had 14 days from that date to appeal that decision which would have expired on 16 March 2018. By way of summons dated 5 September 2018, 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 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 O 59 r 15.

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. He claims he did not receive the Order on time but gives no further explanation. The Court file suggests that it was properly served upon the address given at that time, which is the same address the applicant uses today. The applicant maintains that he only learnt of the refusal of leave when an officer from the Immigration Department contacted him to deal with his return to his home country.  In addition, the applicant submits that he wishes to add additional grounds to his application for judicial review but has not referred to them within his Affidavit save to say that he believes he has good grounds of appeal.

Conclusion

6.  The applicant has now been in Hong Kong since 2012. He has been interacting with various government agencies for the entirety of that period and accepts he received all necessary documents and notifications. The explanation he has offered to this court, as to why he did not receive the order is not acceptable.

7.  In any event, I have considered his underlying application.  It has no merit as explained at some length in the initial refusal of leave.  The grounds of review advanced were generic and without reference to specifics. 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.

8.  The applicant’s summons dated 20 September 2018 be dismissed.