RE LAKHBIR

HCAL 430/2019

[2022] HKCFI 2686

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 430 OF 2019

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D E C I S I O N

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Introduction

1.  This is an application dated 16 May 2022 to appeal my decision of 29 March 2022 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 did not attend court for the hearing and therefore I have considered the application upon the papers.

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 lawfully on 14 July 2015 but was refused permission to land. He submitted a non-refoulement (“NRF”) claim on 25 August 2015. He was interviewed by the Director of Immigration (the “Director”) on 10 September 2015. The Director dismissed his claim under all heads, by Notice of Decision on 5 October 2015 and by Notice of Further Decision dated 16 February 2017. He appealed those Decisions to the Torture Claims Appeal Board (the “TCAB”). The adjudicator of the TCAB, Ms Betty Kwan, refused his appeal on 22 December 2015.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 15 February 2019 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 29 March 2022. He had 14 days from that date to appeal that decision which would have expired on 12 April 2022. By way of summons dated 16 May 2022, 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]. An extension of time will not be granted unless there is a real prospect of success[2].

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 gave no reason within his Affirmation as to why that was the case other than to say that he had a lack of knowledge and insufficient resources. The Court file suggests that the Form CALL-1 was properly served upon the address given to the Immigration Department at that time. It is the same address the applicant uses today. 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[3]. The consequences of any delay arising from failing to do so will fall upon the litigant[4]. In the same manner, having taken receipt of the Form CALL-1, the applicant has a duty to progress his case in a timely manner and, in any event within the statutory time frame, which in this case was 14 days.

7.  Even if the Court had been provided with an explanation for delay which is considered reasonable, the applicant does not automatically succeed in his application for an extension of time. The Court is required to examine whether there is any underlying merit in the applicant’s appeal[5]. Whether there is any such merit will depend upon well‑established legal principles[6] 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. No grounds of appeal were provided in his supporting affirmation and he did not attend court. There was no basis upon which the Court could assess whether the applicant truly seeks to review the exercise of a judicial function and in so doing indicate a reasonable prospect of success in the intended appeal[7].

8.  The applicant has now been in Hong Kong since 2015. He has been interacting with various government agencies since that date. The limited explanation he has offered to this court, as to why he did not progress his claim in a timely manner is not acceptable.

9.  In any event, I have considered his underlying application. It has 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.

10.  The applicant’s summons dated 16 May 2022 be dismissed.