MONDAL ENTAJ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 692/2017

[2019] HKCFI 736

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 692 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 12 October 2018 for appeal from my decision of 5 July 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 12 April 2014.  He submitted a Non‑refoulement Claim Form on 16 November 2015 and was interviewed by the Director of Immigration (“the Director”) on 7 March 2016.  The Director dismissed his claim under all heads, by Notices of Decision on 9 May and 29 December 2016.  He appealed those Decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Ms Kay Ransome (“the Adjudicator”), heard him on 27 January 2017.  The Adjudicator refused his appeal on 30 August 2017.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 27 September 2017.  He 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 5 July 2018 and sent to the address given by him to the court.  He had 14 days from that date to appeal the decision, which would have expired on 19 July 2018.  By way of summons dated 12 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.

6.  The applicant was absent.  Accordingly, I dealt with his application on the papers.  In his affirmation dated 12 October 2018, the applicant did not explain the considerable delay.  He submitted only that the decision of the court was unfair and unreasonable.  Having provided no basis for that remark, this court is not in a position to assess whether that would found a good reason to extend time to appeal.

Conclusion

7.  The applicant has now been in Hong Kong since 2014. He has been interacting with various government agencies for the entirety of that period.  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.  In the absence of both the applicant and any explanation, the court does not know whether he received the Order and Form Call-1 or not but must assume that he was notified of the refusal of his application when he next attended the Immigration Department.

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 is no substantive complaint before the court as to the decision to refuse leave other than it being unfair and unreasonable, without more.  He has not advanced any grounds of appeal.  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 12 October 2018 be dismissed.