ANOWAR HOSSAIN POKIR v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

HCAL 304/2018

[2020] HKCFI 1782

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 304 OF 2018

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D E C I S I O N

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Introduction

1.  This is an application dated 3 July 2020 to appeal my decision of 15 June 2020 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 in person and had the benefit of a Bengali 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 20 June 2008. He was arrested by the police on the next day.  He submitted a non‑refoulement claim on 8 September 2016 and was interviewed by the Director of Immigration (“the Director”) on 31 October 2016.  The Director dismissed his claim under all heads, by Notice of Decision on 2 November 2016.  He appealed that Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Tonino Caravella, heard him on 4 October 2017.  The adjudicator refused his appeal on 29 December 2017.  

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 27 February 2018 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 15 June 2020.  He had 14 days from that date to appeal that decision which would have expired on 29 June 2020.  By way of summons dated 3 July 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 53, rule 3(4) 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 by just three days and gave no reason within his Affidavit as to why that was the case.  There was a considerable delay between this matter being dealt with by the undersigned and the date in which it was eventually filed and served upon the applicant.  Whilst he should have kept the court informed at all times of his change of address, the delay in service was entirely at the hands of the Court.  It is nevertheless 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] and he has confirmed his new address to the court today.   The consequences of any delay arising from failing to do so will fall upon the litigant[3].  In this instance the delay was minimal but the consequence of even that minimal delay is that the court needs to be satisfied that this is a proper matter to go to the Court of Appeal.

7.  Even where the Court does accept that the explanation given for the delay is a reasonable one, 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 submissions to make in this regard. There are therefore no grounds provided which seek to review the exercise of a judicial function and in so doing indicate a reasonable prospect of success in the intended appeal[6].

8.  The applicant simply wants his case to be tried again.  As the role of the Court in judicial review is not to provide a further avenue of appeal from the Decisions of the Director and the Adjudicator, it follows that an appeal from this Court should not be founded upon any attempt to appeal those same decisions.  It is an appeal from the decision of this Court and the applicant should look to draft grounds of appeal on that basis. This was explained in some detail to the applicant when he appeared.

Conclusion

9.  The applicant has now been in Hong Kong since 2008.  He has been interacting with various government agencies since that date. He has had the benefit of a significant delay caused by the administration which is not his fault.  However, that does not affect the merits of his underlying claim which has been adjudicated upon properly throughout.

10.  I have considered his underlying application once more and have considered his limited submissions today.  They have no merit as explained in the initial refusal of leave.  There were no grounds of review and none could be ascertained from the papers.  There was no complaint before the Court as to the decision to refuse leave.  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.

11.  The applicant’s summons dated 3 July 2020 be dismissed.