SK SIRAJ UDDIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 727/2017

[2019] HKCFI 760

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 727 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 18 December 2018 for appeal from my decision of 24 August 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.  

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 18 December 2013. He submitted a non-refoulement claim form on 29 December 2016 and was interviewed by the Director of Immigration (“the Director”) on 27 January and 24 February 2017.  The Director dismissed his claim under all heads, by Notice of Decision on 7 April 2017.  He appealed that Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Ms Betty Kwan (“the Adjudicator”), heard him on 21 July 2017.  The Adjudicator refused his appeal on 4 August 2017.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 6 October 2017, in which he gave his address as Castle Peak Bay Immigration Centre (“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 24 August 2018 and sent to an updated address as of February 2018, which was at Rm A, 6/F, Tai On House, 75 Tong Mi Road, Tai Kok Tsui, Kowloon.  He had 14 days from that date to appeal the decision, which would have expired on 7 September 2018.  By way of summons dated 18 December 2018, 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 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.

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.

6.  In his affirmation dated 11 December 2018, he submitted that he was late in filing his appeal because he had been detained in prison.  This is not accurate.  He was not detained on 24 August 2018 when the Order was handed down.  At that time he was living with a friend and had not informed the court of his change of address although the court file indicates that he had previously written to inform the court of a change of address and accepted that he knew he should do this.  Shortly after 24 August 2018, the applicant was imprisoned, this was between September and October 2018 after his release he has written one of many letters to the court on 31 October 2018, seeking to ask the progress of his application.  This would still have rendered him late in seeking to appeal but it may have been understandable if his explanation was made out.  A further copy of the Form Call‑1 and Order were sent to him at the address on that letter which was CIC.  If he had acted appropriately he could have filed a summons to appeal out of time within 14 days of that letter but he did not do so.  He did not file a summons to appeal until 18 December 2018.  He says it was because he did not have the money for a lawyer.  I also note that the applicant sent a further letter to the court on 1 February 2019, chasing the progress of his appeal.  He is therefore fully aware of his need to correspond with the court and for the court to be able to correspond with him.

Conclusion

7.  The applicant has now been in Hong Kong since 2013. He has been interacting with various government agencies for the entirety of that period and he received all necessary documents and notifications.  He fully understood that the court required an up to date address in order to correspond with him.  He corresponded frequently with the court of his own volition.  The reason this application is late is to be put entirely at his own door.  He was notified promptly of the decision of this court (twice) and, had he given his current address to the court, he would have been made aware of what was required of him should he wish to appeal that decision.  In the event, he received a copy of the decision late but then still took some time to action it.  It was incumbent upon him to do so promptly.  He put himself in a position where that could not happen.

8.  In any event, I have considered his underlying application.  It has no merit as explained in the initial refusal of leave. There were limited grounds of review, which were without merit.  There has been no complaint before this court as to the decision of the Adjudicator nor as to the decision of this court to refuse leave.  The applicant has advanced no grounds of appeal other than to say he now wishes to have more time to obtain papers from home.  He accepts this issue has never been raised before and did not identify the papers or their significance.  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 18 December 2018 be dismissed.