RE KARIM FAZAL

HCAL 582/2017

[2021] HKCFI 3149

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 582 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 29 September 2021 seeking to appeal my decision of 13 April 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 attended court with the benefit of an interpreter.

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 22 February 2014 but thereafter overstayed.  He was arrested on 15 March 2014.  He submitted a non-refoulement (“NRF”) claim on 4 November 2015 and was interviewed by the Director of Immigration (“the Director”) on 4 December 2015.  The Director dismissed his claim under all heads, by Notice of Decision on 26 February 2016 and by Notice of Further Decision on 1 June 2017.  He appealed those Decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Fraser Syme, heard his appeal on 13 July 2017 and refused it on 26 July 2017.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 5 September 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 13 April 2018.  He had 14 days from that date to appeal that decision which would have expired on 27 April 2018.  By way of summons dated 29 September 2021, 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 accepted he was late and gave no reason within his Affirmation as to why that was the case other than to say that he did not receive the letter.  The Court file does not indicate to where the Form CALL‑1 and Order of this Court were sent.  This is of no import as the applicant stated that he moved address just one month after he filed the Form 86 and accepted that he did not inform the High Court of his change of address.  At that time, he was reporting to CIC every two weeks.  He would not answer when it was that the Immigration Department told him that his judicial review had been unsuccessful but then told the Court that he had been removed to Pakistan.  He could not say when.  He eventually returned to Hong Kong and entered unlawfully on 14 February 2021 from China, which accounts for the significant delay of 3½ years.  He has not told the Court how he came to know that his judicial review application was unsuccessful or how he came to seek an extension of time.  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].  These proceedings should have been brought to a close when he left Hong Kong and remained in Pakistan for a significant period of time.  He only returned to Hong Kong after the death of his father.  The consequences of delay arising from his inaction falls upon him[3] and, in this case, the delay was significant.  I might add that the merits of his underlying claim, which is not the issue for the Court today, were somewhat undermined by his remaining in Pakistan in the intervening period.

7.  Even if the Court did accept the explanation given for the delay, the Court is 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 applicant has no grounds of appeal and makes no criticism of this Court.  The applicant does not truly seek to review the exercise of a judicial function and there is not a reasonable prospect of success in the intended appeal[6].

8.  I have, in any event, re‑considered his underlying application but also his explanation for his delay by reason of him being in Pakistan for some three years.  His original claim for refugee status had no merit as explained in the initial refusal of leave.  There were no grounds of review and none could be ascertained from the papers.  Any merit which might have been found has been undermined by his recent actions.  There is no complaint before the Court as to its decision to refuse leave.  Nothing new has been raised.  The applicant merely wishes the Court of Appeal to consider his situation afresh.  Having considered the substantial length of the delay, the reason for the delay and the 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 29 September 2021 be dismissed.