RE NOOR MOHAMMED

HCAL 229/2018

[2022] HKCFI 167

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 229 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 9 November 2021 to appeal my decision of 15 June 2020 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.  The matter was therefore dealt with on 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 (“the Convention”).  He entered Hong Kong lawfully on 23 July 2005 and was allowed to remain as a visitor until 6 August 2005.  He thereafter overstayed in Hong Kong since 7 August 2005.  He was arrested for overstaying on 28 September 2006.  He submitted a claim under the Convention on 9 August 2007 which was not completed under the previous screening scheme.  Subsequently, it was taken to be a non-refoulement (“NRF”) claim upon the commencement of the unified screening mechanism (“USM”) on 3 March 2014 and therefore assessed under the USM currently in place.  

3.  The Director dismissed his claim under all heads, by Notice of Decision on 26 February 2015 and by Notice of Further Decision on 2 August 2017.  He appealed these Decisions to the Torture Claim Appeals Board/Non-Refoulement Claims Petition Office (“TCAB”).  The adjudicator of the TCAB, Mr William Lam, heard him on 5 December 2017.  The adjudicator refused his appeal on 8 February 2018.

4.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 13 February 2018 and did not request an oral hearing.  The application was made out of time.  The application was therefore considered on that basis and on the papers.  His application for leave to apply for judicial review was refused on 15 June 2020 with reasons.  He had 14 days from that date to appeal that decision which would have expired on 29 June 2020.  By way of summons dated 9 November 2021, he seeks leave to appeal out of time.

5.  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].

6.  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 as well as give a full account of and explanation for the whole of the delay since time expired.  

7.  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 has stated in an affirmation that his reason for being out of time was because he was not aware of the rule that he must appeal within 14 days.

8.  The Court file suggests that the Form CALL-1 and Order were properly served upon the address given by the applicant at the time, which although it is not the same address the applicant uses today, he takes no point on non-receipt.  On the Form CALL-1, it is clearly stipulated that:

“If leave has been refused, and the Applicant wishes to appeal this decision, the Applicant or his solicitors must file any notice of appeal within 14 days from the date of judgment or order…”

As such, given that the burden falls on the litigant to peruse and observe the conditions laid out by the Court in correspondence, it cannot be reasonably argued by the litigant that the Court should make an exemption for the litigant, given that he has failed to read documents that have been delivered to him and promptly follow the instructions therein.

9.  In any event, 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]. That includes the ability to receive letters properly at the address given.  The consequences of any delay arising from failing to do so will fall upon the litigant.[3]

10.  The Court has not been provided with an explanation for the delay. In the absence of any explanation, 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.  The applicant has not submitted any grounds for his application for leave to appeal against the order of this Court and, having re-examined the papers for the original application for leave to apply for judicial review, can find no merit in the current application for extension of time.  It is accordingly rejected. 

Conclusion

11.  The applicant has now been in Hong Kong since 2007. He has been interacting with various government agencies since that date.  The explanation he has offered to this court as to why he has been late in submitting his application for leave to appeal this Court’s order is not acceptable, namely that he was not aware of the time limitation which was clearly expressed within Form CALL‑1 and which it was accepted was received by the applicant.

12.  In any event, I have considered his 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 placed before the Court as to the decision to refuse leave. 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.

13.  The applicant’s summons dated 9 November 2021 be dismissed.