JAMI MAHMOOD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 930/2017

[2020] HKCFI 2625

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 930 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 26 August 2020 to appeal my decision of 7 August 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 court for the hearing and therefore I have considered the application upon 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.  He entered Hong Kong illegally on 23 June 2006. He was arrested by the police on the same day.  He had a chequered history with the authorities subsequent to that but eventually submitted a supplementary claim form on 26 January 2015 and was interviewed by the Director of Immigration (the “Director”) on 14 December 2015, although this was the last of 11 interviews.  The Director dismissed his claim under all heads, by Notice of Decision on 21 December 2015 and by Notice of Further Decision on 5 April 2017.  He appealed those Decisions to the Torture Claims Appeal Board (the “TCAB”).  The adjudicator of the TCAB, Mr Tam Kwok‑wah (the “Adjudicator”), heard him on 1 June 2017.  The Adjudicator refused his appeal on 21 June 2017.  

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 22 November 2017 and was out of time.  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 7 August 2020 due to administrative delays within the High Court, of which he had the benefit.  He had 14 days from that date to appeal that decision which would have expired on 21 August 2020.  By way of summons dated 26 August 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 was late and gave no reason within his Affirmation as to why that was the case.  As with his original application for judicial review, the applicant provided no grounds of appeal.  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.  There was no explanation given for the delay and time limits are rightly strict.  The Court is nevertheless 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 question for the Court is whether any 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].  There were no submissions.

Conclusion

8.  The applicant has now been in Hong Kong since 2006. He has been interacting with various government agencies since that date and has had the benefit of a significant delay in dealing with the application. He has no grounds of appeal.  

9.  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 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.

10.  The applicant’s summons dated 26 August 2020 be dismissed.