PANCHANATHAN RAMU v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 793/2017

[2018] HKCFI 2734

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 793 OF 2017

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R U L I N G

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Introduction

1.  This is an application dated 23 October 2018 for leave to extend time to appeal against an order of this Court dated 14 September 2018, in which the applicant was refused 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 seeks leave to appeal out of time.

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 29 December 2013 from India but thereafter overstayed.  He submitted a non-refoulement (“NRF”) claim on 24 August 2015 and was interviewed by the Director of Immigration (“the Director”) on 28 February.  The Director dismissed his claim under all heads, by Notice of Decision on 23 May 2016 and by Notice of Further Decision 8 May 2017.  He appealed those Decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Adam Moore, heard him on 19 July 2017.  The adjudicator refused his appeal on 27 September 2017.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 20 October 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.  There were no grounds of review.  His application for leave to apply for judicial review was dismissed on 14 September 2018.  He had 14 days from that date to appeal that decision which would have expired on 28 September 2018.  By way of summons dated 23 October 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.  He did not do so.  In his Affirmation in support the applicant stated that he was not legally represented and had “asked around” and not found out that there was a “14” day deadline until after it had expired.

6.  The applicant appeared in person.  He submitted that he was late in filing his appeal because he had not received the Call-1 Form or Order.  This was because he had moved address and did not know about the decision until he went to sign on at the Immigration offices, which he did every two weeks on a Tuesday.  He eventually maintained that he had not been told about the decision until 10 October.

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 accepts he received all necessary documents and notifications at his original address, which is the one on file and at which he had been staying since 2014.  In June of this year he moved addresses to an address in Yuen Long, which he says is his official address and at which he resides.  However, he has now given the Court a different address for the purposes of service because the post box in his own address is insecure.  He says that the second address is that of a friend.  This situation is unacceptable.  All applicants have a duty to ensure that the Court can communicate with them effectively.  He had from June of this year to inform the Court of his new address and did not do so.  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 and, had he been living at his registered address, he would have been made aware of what was required of him should he wish to appeal that decision.  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 no grounds of review and 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.  I have explained to the applicant that is not the function of the Court in judicial review proceedings.  He does not seem to want to take this point on board.  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 23 October 2018 be dismissed with, no order as to costs.