ARMED FARHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 709/2017

[2018] HKCFI 2780

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 709 of 2017

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R U L I N G

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Introduction

1.  This is an application dated 4 September 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 13 February 2016. He submitted a non-refoulement (“NRF”) claim on 2 June 2017 and was interviewed by the Director of Immigration (“the Director”) on 19 June 2017. The Director dismissed his claim under all heads, by Notice of Decision on 22 June 2017. He appealed those Decisions to the Torture Claims Appeal Board (‘the TCAB’). The adjudicator of the TCAB, Mr Wesley Wong, heard him on 7 September 2017. The adjudicator refused his appeal on 15 September 2017.

3.  The applicant filed a notice of application on a F86 seeking leave to apply for judicial review on 23 October 2017, in which he gave his address as CIC, 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 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 4 September 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 O 59 r 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. In his Affidavit in support, he claims he was unaware of the time limit to do so.

6.  The applicant appeared in person. He submitted that he was late in filing his appeal because he had not informed the court of his new address since being released from detention. He was informed by the Department of immigration when he signed on but he had then taken some time to find a lawyer and seek advice. He had a very relaxed approach to the time limits.

Conclusion

7.  The applicant has now been in Hong Kong since 2016. He has been interacting with various government agencies for the entirety of that period and accepts he received all necessary documents and notifications. He fully understood that the court required an up to date address in order to correspond with him.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 given his current address to the court, he would have been made aware of what was required of him should he wish to appeal that decision. In the event, he received a copy of the decision late but then still took some time to action it. 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 the complaint before the Court as to the decision to refuse leave is that it was unfair and unreasonable without more. 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 4 September 2018 be dismissed.