MUNATSI KINGSLEY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 925/2017

[2019] HKCFI 884

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 925 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 30 January 2019 to appeal my decision of 29 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 attended court 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 legally on 23 June 2008 and thereafter overstayed for almost six years before being apprehended by the police.  He was convicted of overstaying and received a sentence of imprisonment of six months.  Thereafter, he submitted a Non-refoulement Claim Form on 12 January 2016 and was interviewed by the Director of Immigration (“the Director”) on 18 March 2016.  The Director dismissed his claim by Notice of Decision and Further Decision on 26 April 2016 and 27 April 2017 respectively.  He appealed those Decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Ms Mary Yuen (“the Adjudicator”), heard him on 10 May 2017.  The Adjudicator refused his appeal on 7 July 2017.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 21 November 2017 and did not request an oral hearing.  He now maintains that he was late in submitting his Form 86 to the High Court because he had been pursuing representation from the Legal Aid Department (“the LAD”).  The Director of Legal Aid had not informed him that he should submit his Form 86 at the same time and he had therefore waited until the outcome of his legal aid application before seeking leave to judicially review the TCAB.  He has submitted proof of his application to the LAD and the refusal which is dated 13 November 2017.  He finally submitted his application under Form 86 on 21 November 2017, a time at which he acknowledges he knew he was already late.  As he did not ask for an oral hearing, his application was considered on the papers.  There was no explanation for his delay provided at that time.  His application for leave to apply for judicial review was refused on 29 November 2018, when this court refused an extension of time to appeal.  He had 14 days from that date to appeal that decision which would have expired on 13 December 2018.  He sent a letter to the court dated 5 December 2018 in which he sought to justify the lateness of his Form 86.  At that time, he had clearly received the Form Call-1 and the Order of the court, which stated:

“AND IT IS FURTHER DIRECTED that:-

2. Where an applicant intends to appeal against an order refusing to extend time for making the application for leave to apply for judicial review to the Court of Appeal, he/she is to apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

3. When filing the application for leave to appeal the applicant is to file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

4. The court will thereafter give directions as to the service of the summons and the written submissions on the putative respondent(s) and as to whether the application for leave to appeal shall be determined by way of oral hearing or on the papers; and

5. If the court decides that the application for leave to appeal shall be determined on the papers, will proceed to do so without further directions.”

He did not comply.  He maintained in court that he did not realise he needed to do so because our legal system is foreign to him.  I do not accept that.  The applicant is very well‑educated and has exceptional command of the English language.  He could not have failed to take cognizance of the Order.

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.  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 has not addressed this point at all. He has addressed why he was late in filing his Form 86.

5.  This is not a proper application for judicial review or for extension of time.  The applicant has raised no point suitable for consideration on appeal.  He asks the court to reconsider his claim.  He says he is now married to a Hong Kong resident and that he was the subject of a recent kidnap attempt, which substantiates his claim that bad people are after him and that he would be in danger if refouled to Botswana.  His underlying claim arises out of a business venture between the applicant and two other African males concerning the loan of monies for the purchase of mobile phones.  The events about which the applicant is concerned occurred in Hong Kong when he lost a significant number of phones as a result of his own negligence.  Not surprisingly, he came under pressure from his African investors to return the money they had given to him.  However, he suffered no actual harm as a result.  When he finally submitted his non‑refoulement claim in 2014, the applicant maintained these two men were involved with Al-Shabaab and he feared retaliation if he went back to Botswana.  Both today, and in his original leave application, the applicant says that the decision of the Adjudicator was neither fair nor reasonable considering his life is in danger.

Conclusion

6.  The applicant has now been in Hong Kong since 2008.  He has been interacting with various government agencies since 2014 when he was first apprehended by the police.  I do not accept that he was ignorant of the fact that he needed to submit his Form 86 timeously.  He knew he was late in submitting the Form 86 and did not supply any explanation for that at the time which would have enabled the court to consider an application to extend time favourably during the leave process.  He has no complaint about the way this court handled that application.  His complaint is based upon his dissatisfaction over the original claim for asylum.

7.  I have considered his underlying application. It has no merit.  There were no grounds of review other than that the decision of the Adjudicator was unfair and unreasonable.  There was no complaint before the court as to the decision to refuse an extension of time for leave.  There were no grounds of appeal.  The applicant merely wishes the Court of Appeal to consider his situation afresh.  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.

8.  The applicant’s summons dated 30 January 2019 be dismissed.