EHSAAN MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 765/2017

[2020] HKCFI 2913

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 765 OF 2017

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BETWEEN

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D E C I S I O N

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Introduction

1.  This is an application dated 9 September 2020 to appeal my decision of 2 July 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 attended the Court with the benefit of an interpreter.

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 illegally on 8 January 2016. He was arrested on the same day.  He submitted a non-refoulement claim on 23 March 2016 and did not attend a screening interview.  The Director of Immigration (“the Director”) dismissed his claim under all heads, by Notice of Decision on 1 August 2016 and by Notice of Further Decision 22 May 2017.  He appealed those Decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Adam Moore (“the Adjudicator”), heard him on 28 September 2017.  The Adjudicator refused his appeal on 29 September 2017.  

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 13 October 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 July 2020.  He had 14 days from that date to appeal that decision which would have expired on 16 July 2020.  By way of summons dated 9 September 2020, 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 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.  

6.  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 he was late and gave no reason within his professionally prepared Affirmation as to why that was the case.  The Court file suggests that it was sought to be served upon the address given at that time, which is not the same address the applicant uses today.  However, the file also suggests that correspondence subsequently sent to the address given at the time of this summons was also returned.  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.  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]

7.  Even if the Court does accept that the explanation given for the delay is a reasonable one, 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 submits simply that he has a good ground of appeal not previously considered but advances no such ground before the Court today.  He does not dispute the decision of this Court. The question for the Court is whether these submissions truly seek to review the exercise of a judicial function and in so doing indicate a reasonable prospect of success in the intended appeal[6].

8.  As 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, 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.  This was explained in some detail to the applicant when he appeared.

Conclusion

9.  The applicant has now been in Hong Kong since 2016. He has been interacting with various government agencies since that date.  The explanation he has offered to this Court, as to why he did not receive the order is not acceptable.  Nor is it acceptable that his subsequent correspondence address has proved unreliable.  The suggestion that he now has a good ground of appeal was wholly without foundation.

10.  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 as such.  He simply stated that the decisions were unfair and unreasonable without more.  None could be ascertained from the papers.  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.

11.  The applicant’s summons dated 9 September 2020 be dismissed.