NAZAKAT KHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 890/2017

[2020] HKCFI 1305

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 890 OF 2017

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BETWEEN

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D E C I S I O N

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Introduction

1.  This is an application dated 4 June 2020 to appeal my decision of 19 May 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 represented himself at the hearing at which time the limited nature of these proceedings was explained to him with the benefit of a Pakistani 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 18 March 2016 and was arrested the same day.  He submitted a non-refoulement claim on 11 May 2016 but did not attend a screening interview by the Director of Immigration (“the Director”).  The Director dismissed his claim under all heads, by Notice of Decision on 3 November 2016.  He appealed that Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Ms Betty Kwan, heard him on 8 September 2017.  The adjudicator refused his appeal on 22 September 2017.  

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 15 November 2017, although the Grounds of review, such as they were, were not submitted until 18 May 2018.  He did not request an oral hearing.  The matter was therefore considered on the papers.  His application for leave to apply for judicial review was considered and refused in March 2019 but, due to a staffing difficulty, the Order was not prepared until 19 May 2020.  He had 14 days from that date to appeal that decision which would have expired on 2 June 2020.  By way of summons dated 4 June 2020, 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 15.  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 was just two days late in submitting his leave to appeal.  He accepted he was late and whilst he gave no reason within his Affidavit as to why that was the case, in court he explained that he had moved addresses in the intervening period and his estate agent and forwarded this Form CALL-1 and Order from his old address.  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].  The consequences of any delay arising from failing to do so will fall upon the litigant[3]  However, in this instance, the Court was slow to file and serve the Form CALL-1 and Order causing a considerable time to pass between the submission of his Form 86 and receipt of the refusal of leave.  It is not surprising that he may have changed address in that period and he should have notified the Court but given the fact that he was only two days late in filing his application for extension of time for leave to appeal, I consider that he should not be shut out upon this ground alone.

7.  Even if the Court does accept that the explanation given for the delay is reasonable, the court is nevertheless 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.  This was explained to the applicant but he was unable to show any cause for complaint in respect of the refusal of leave.  That being the case, the applicant is unable to show a reasonable prospect of success in the intended appeal[6].

Conclusion

8.  I have considered the applicant’s underlying application.  It has no merit, as explained in the initial refusal of leave.  There were no grounds of review and none which 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.  Although the delay was negligible, there is no underlying merit to 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 4 June 2020 be dismissed.