MOHAMMAD ESHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1138/2017

[2019] HKCFI 1705

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1138 OF 2017

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D E C I S I O N

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Introduction

1.  This is an application listed on 3 May 2019 to appeal my decision of 27 November 2018, refusing leave to extend time 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 did not require an interpreter as he has an excellent command of the English language.

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 April 2014 and thereafter overstayed.  He was arrested on 23 May 2014.  He submitted a non‑refoulement claim form on 31 December 2015 and was interviewed by the Director of Immigration (“the Director”) on 21 January 2016.  The Director dismissed his claim under all heads, by Notice of Decision on 10 March 2016 and by Notice of Further Decision on 8 February 2017.  He appealed those decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Gregory Brock (“the Adjudicator”), heard him on 20 February 2017.  The Adjudicator refused his appeal on 29 March 2017.  

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 22 December 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.  He was out of time.  His application for leave to apply for judicial review was considered as an application to extend time to apply for judicial review and was refused on 27 November 2018.  He had 14 days from that date to appeal that decision which would have expired on 11 December 2018.  By way of summons filed on 4 July 2019, he seeks leave to appeal out of time.

4.  An applicant does not usually 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.  This was not done.  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 claims he did not receive the Form CALL‑1 and Order on time and that he received it some three weeks late.  That does not excuse a delay of some five months.  He also submits that he was misled by immigration staff who told him that he had no recourse but to leave the country.  He submits that he did not initially realise he could appeal and when he was informed that he could do so, he could not afford a lawyer.  When tested however, the applicant accepted he mixes in the refugee claimant community and that many of his friends are in a similar position to him. I do not accept that he would not have known he could appeal, not least because it says so on the Form CALL‑1.  A perusal of his summons and supporting affirmation indicates a well‑educated man with a firm grasp of the English language.  He ultimately drafted and submitted the documentation himself without the assistance of a lawyer and was clearly able to do so before May 2019.  

6.  Even if the court does accept the reasons given for the delay, the court is required to examine whether there is any merit in the applicant’s appeal[1]. 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[2].  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.  The applicant had not turned his mind to the decision of this court dated 27 November 2018. He wished to appeal the Decision of the TCAB, which, because of his tardiness in submitting his Form 86, was not substantively considered during the leave to extend time process.

7.  The applicant was unable to advance any grounds of appeal from the decision of this court and therefore the court was unable to find that there would be a reasonable prospect of success in the intended appeal.

Conclusion

8.  The explanation offered to this court, as to why the applicant took until May 2019 to appeal the decision of this court is not acceptable.  I have nevertheless considered his underlying application.  It has no merit as explained by both the Director and the Adjudicator and as outlined in the Form CALL‑1.  There was no explanation for the delay to file the Form 86 and the grounds of review amounted to an allegation that the hearing before the TCAB was unfair as he had no legal representation and that no proper reasons for the Decision had been given. Before this court, the applicant accepted that he had every opportunity to make representations to the TCAB and that his veracity had been found wanting.  He also accepted that the Adjudicator had given his reasoning in full as to why the applicant had not been believed and had nevertheless gone on to consider his claim at its highest.

9.  There was no complaint before the court as to the decision to refuse leave to extend time.  The applicant 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.

10.  The applicant’s summons filed on 4 July 2019 be dismissed.