RE MAGOOLA NADIA AMIRA

HCAL 355/2018

[2021] HKCFI 1239

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 355 OF 2018

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D E C I S I O N

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Introduction

1.  This is an application dated 15 September 2020 to appeal my decision of 30 June 2020 refusing leave to apply for judicial review. The applicant had 14 days in which to apply to appeal that decision.  She did not do so.  She 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.  She entered Hong Kong lawfully on 23 March 2013 but thereafter overstayed.  She surrendered to the Immigration Department on 26 November 2013.  She submitted a non-refoulement (“NRF”) claim on 20 January 2017 and was interviewed by the Director of Immigration (“the Director”) on 8 February 2017.  The Director dismissed her claim under all heads, by Notice of Decision on 6 March 2017.  She appealed those Decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Adam Moore, heard her on 15 September 2017.  The adjudicator refused her appeal on 9 February 2018.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 6 March 2018 and did not request an oral hearing.  The matter was therefore considered on the papers.  Her application for leave to apply for judicial review was refused on 30 June 2020.  She had 14 days from that date to appeal that decision which would have expired on 14 July 2020.  By way of summons dated 15 September 2020, she 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].

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.  The applicant accepted she was late and gave no reason within her Affirmation as to why that was the case other than she did not receive the letter from the Court.  The Court file suggests that it was properly served upon the address given at that time, which is not the same address the applicant uses today.  The correspondence was returned.  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[2].  The consequences of any delay arising from failing to do so will fall upon the litigant[3].  

6.  Even if the Court does accept that the explanation given for the delay is a reasonable one and no such explanation was proffered, the Court is required to examine whether there is any merit in the applicant’s appeal [4]. Whether there is any such merit will depend upon well‑established legal principles[5] 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.  There were no submissions to the Court on paper.  Therefore the Court had no basis on which to assess whether the applicant seeks to truly review the exercise of a judicial function and in so doing could indicate a reasonable prospect of success in the intended appeal[6].

Conclusion

7.  The applicant has now been in Hong Kong since 2013.  She has been interacting with various government agencies since that date.  She has offered no explanation to this court as to why she did not receive the order and has provided no grounds of appeal.

8.  In any event, I have considered her 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. Having considered the length of delay, lack of any reason for the delay and underlying merits of her 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 September 2020 be dismissed.