AHMED ZAKAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 708/2017

[2019] HKCFI 154

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 708 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 24 October 2018 seeking leave to appeal out of time from my decision of 6 July 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 is unrepresented and attended court for the hearing.

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 26 October 2011 and was arrested by the police on 31 October 2011.  He submitted a non‑refoulement (“NRF”) claim on 13 May 2015 and was interviewed by the Director of Immigration (“the Director”) on 19 June 2015.  The Director dismissed his claim under all heads, by Notices of Decision on 30 July 2015 and 24 October 2016.  He appealed those Decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr William Lam, heard him on 7 July 2017.  The adjudicator refused his appeal on 11 July 2017.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 22 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 6 July 2018.  He had 14 days from that date to appeal that decision which would have expired on 20 July 2018.  By way of summons dated 24 October 2018, 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 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.

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.  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 claims he did not receive the Order on time but gives no further explanation.  The Court file suggests that it was properly served on 6 July 2018 to the address given to the Court for the purposes of the Form 86 application i.e. the Castle Peak Bay Immigration Centre (“Castle Peak”).  However, the Court’s letter was returned from there on 9 July 2018, informing the Court that the applicant had left Castle Peak on 18 December 2017.  At that stage he went to an address known to the Immigration Department but not provided to the Court.  Enquiries were made by the Court of the Immigration Department to secure his new address. On 17 July 2018, the Immigration Department provided his current address, which was: Room B, 2/F, No 4 Ma Hang Chung Road, To Kwa Wan, Kowloon as of 17 July 2018.  A further letter enclosing the Call-1 form and Order dated 6 July 2018 was sent to that address on 26 July 2018.  That too was eventually returned to the High Court on 20 August 2018.  The applicant confirmed to the Court that he was living at the address at the time and that he had access to a letter box but that he did not receive the letter.  The applicant maintains that he only learnt of the refusal of leave when informed by an officer from the Immigration Department “recently” i.e. in October 2018. The Immigration Department were aware of the refusal of leave as early as 9 July 2018.  He would have been required to report upon his recognisance.  He maintains that was every two weeks.  On the facts as known, this would mean he should have received notice of the determination of this Court by the end of July at the latest either by way of letter or from the Immigration Department when he reported.  That is a considerable amount of time before 24 October 2018, when he finally submitted the summons before me today.

Conclusion

6.  The applicant has now been in Hong Kong since 2011.  He has been interacting with various government agencies for the entirety of that period.  The explanation he has offered to this Court, as to why he did not receive the Order is not acceptable, if for no other reason than he would have been reporting to Immigration in the interim.  Even so, it is incumbent upon the applicant to ensure he informs the Court of his correct address and he did not do so.  It should not be necessary to point out that it is also incumbent upon the applicant to check his mail.

7.  In any event, I have considered his underlying application.  It has no merit, as explained at some length in the initial refusal of leave.  There were no grounds of review.  There has been 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 as he is unhappy with the decision of this Court and does not want to return to his own country.  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 24 October 2018 be dismissed.