RASHEED USMAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1096/2017

[2019] HKCFI 915

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1096 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 24 January 2019 for appeal from my decision of 2 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.

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 5 December 2012 and was arrested the next day.  He submitted a Non-refoulement Claim Form on 14 February 2013 and was interviewed by the Director of Immigration (“the Director”) on 14 May and 17 June 2013.  The Director dismissed his claim by Notice of Decision on 31 July 2013.  He did not appeal that Decision.  He did however appeal a decision of the Director not to allow him to re‑open his claim in respect of BOR 2.  He appealed that decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Gerard Paul Muttrie (“the Adjudicator”), refused his appeal on 22 May 2017, having considered it on the papers alone.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 18 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 refused on 2 November 2018.  He had 14 days from that date to appeal that decision, which would have expired on 16 November 2018. By way of summons dated 24 January 2019, 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 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 claims he did not receive the Order on time but gives no further explanation.  He also maintains that despite reporting to the Immigration Department every two weeks, he was not made aware of the decision of the court for two months.  The current summons indicates that the applicant’s address is Room A, 7/F, Building No 286, Portland Street, Mongkok.  The address which he gave on his Form 86 was the same.  There is no sufficient explanation as to why he did not receive the Form Call‑1 and Order.

Conclusion

6.  The applicant has now been in Hong Kong since 2012. He has been interacting with various government agencies for the entirety of that period and accepts he received all necessary documents and notifications.  The explanation he has offered to this court, as to why he did not receive the Order is not acceptable, as is the suggestion that he was not informed by the Immigration Department for a further two months.

7.  In any event, I have considered his underlying application to ascertain whether there are any other matters which can be properly taken into consideration and provided him with an opportunity to make further submissions.  His application for judicial review has no merit, as explained in the initial refusal of leave for judicial review.  There were no grounds of review then or now.  There was no complaint before the court as to this court’s decision to refuse leave, quite the opposite.  The applicant stated that he had no complaint with this court.  The applicant wishes the Court of Appeal to consider his situation afresh.  An appeal against a refusal of leave to apply for judicial review is not an occasion for the Court of Appeal to examine the decision of the TCAB afresh.  An appellate court is concerned with the decision of this court when dealing with the grounds of review placed before it.  The Court of Appeal will only interfere with that decision if this court has erred in law, failed to take account of any relevant matter or is otherwise plainly wrong[1].

8.  Having considered the length of delay, reason for the delay and underlying merits of his application, there is no reasonably arguable basis for appeal against this court’s decision and no realistic prospect of success if leave to extend time were to be granted.  It would therefore 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 24 January 2019 be dismissed.