LUQMAN MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 969/2017

[2019] HKCFI 906

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 969 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 11 January 2019 for appeal from my decision of 19 December 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.  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 30 September 2013 and was arrested the same day.  He submitted a Non-refoulement Claim Form on 2 October 2015 and was interviewed by the Director of Immigration (“the Director”) on 9 December 2015 and 25 February 2016. The Director dismissed his claim by Notice of Decision on 1 April 2016 and by Notice of Further Decision on 8 May 2017.  He appealed those Decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Ms Wong Hing-chun (“the Adjudicator”), heard him on 11 September 2017.  The Adjudicator refused his appeal on 3 November 2017.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 28 November 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 refused on 19 December 2018.  He had 14 days from that date to appeal that decision which would have expired on 2 January 2019.  By way of summons dated 11 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 and was informed of the refusal of leave when he reported at Immigration.  The current summons indicates that the applicant’s address is Room C, 7/F, 83-85 Tam Kung Road, To Kwa Wan, Kowloon. The address on the Form 86 was the same.  The court file suggests that it was properly served upon that address.  The applicant maintains that he did not receive the letter in the post until 10 January 2019.  I do not accept that.

6.  When pressed upon his grounds of appeal, the applicant had no complaint about the decision of this court but asked that this court consider new documentation not previously placed before the TCAB or this court.  It consisted of four pages, in both English and Urdu which purported to evidence an acquittal of the applicant and two other males in 2005, having been accused by Zahid of kidnapping him.  Zahid is the main protagonist in the applicant’s claim but this incident was never mentioned at any stage in the proceedings to date.  Indeed, the applicant’s claim suggests that the animosity between himself and Zahid commenced in 2010.

Conclusion

7.  The applicant has now been in Hong Kong since 2013. He has been interacting with various government agencies for the entirety of that period and accepts he received all necessary documents and notifications.  He has had no change of address since he submitted his Form 86.  The explanation he has offered to this court, as to why he did not receive the order is not acceptable.

8.  In any event, I have considered his underlying application.  It has no merit as explained at some length in the initial refusal of leave.  The Adjudicator gave him every opportunity to add additional information and there was no suggestion of any matter from 2005 which he wanted to advance.  The grounds of review advanced before this court were generic and without reference to specifics.  They were rejected.  There was no complaint before this court as to the decision to refuse leave save that he was not given the opportunity to appear in person, such lost opportunity to be placed entirely at his own door as he did not ask for an oral hearing.  He could not now advance any new argument which would have assisted him at any such hearing.  The applicant wishes the Court of Appeal to consider his situation afresh and wishes to place before them new evidence, which pre-dates the allegations made within his claim.  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 11 January 2019 be dismissed.