IRFAN MASHOOQ v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 710/2017

[2018] HKCFI 2313

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 710 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 21 August 2018 for leave to extend time to appeal against an order of this court dated 29 June 2018, in which the applicant was refused leave to apply for judicial review.  The applicant had 28 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 illegally in July 2009.  He was arrested on 26 July 2009.  He submitted a non‑refoulement (“NRF”) claim by way of written representation on 28 July 2009.  On 26 May 2010, he was arrested and prosecuted for breach of condition of stay by reason of taking up employment and was sentenced to 15 months’ imprisonment.  Upon release, he was detained at the Castle Peak Immigration Centre (“CIC”) and was made the subject of a removal order on 26 March 2011.  Having indicated that he did not seek to appeal such order, he was released on recognisance once more on 24 May 2011.  On 27 August 2015, he was prosecuted for Attempted Robbery and sentenced to 26 months’ imprisonment.  Upon release on 14 January 2014, he was detained at CIC.

3.  The applicant submitted his NRF claim form on 17 February 2017 and was interviewed on 28 February. The Director of Immigration dismissed his claim under all heads, by Notice of Decision on 10 March 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Ms Betty Kwan, heard him on 27 June 2017.  The adjudicator refused his appeal on 14 July 2017.

4.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 3 October 2017 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 dismissed on 29 June 2018.  He had 28 days from that date to appeal that decision which would have expired on 27 July 2018.  By way of summons dated 21 August 2018, he now seeks leave to appeal out of time.

5.  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, has to observe the time limits for appeal under Order 59, rule 4(1)(c) which allows 28 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.

6.  In order to obtain that leave, an application must be made promptly and it must be supported by an 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 was required to explain the reasons for his delay.  He did not do so.  He gave no explanation whatsoever.  In the absence of any explanation, the court would also consider length of the delay; the applicant’s chance of success if he were to be granted an extension of time and whether there would be any prejudice to the putative respondent if the application were to be granted.

7.  The applicant appeared in person.  He submitted that he was late in filing his appeal because he was living with a friend at the time and not at the address he had provided to the Immigration Department.  It was only when he went to sign on that he provided a new address and thereafter the relevant documents were sent to him.  He had no other excuse.

Conclusion

8.  The applicant has now been in Hong Kong since 2009.  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 they required an up to date address in order to correspond with him.  The explanation he has offered to this court, whilst frank, was not the same as he suggested in the letter appended to the summons, which was that he did not understand the procedure.  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.  In any event, his underlying application has no merit as explained in the initial refusal of leave.  It would not be in the interest of justice to grant an extension of time in all the circumstances of this case.

9.  This application must be dismissed.