HARJEET PAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1123/2017

[2019] HKCFI 547

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1123 OF 2017

___________________

___________________

___________________

D E C I S I O N

___________________

Introduction

1.  This is an application dated 27 November 2018 to extend time to appeal my decision of 12 October 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 in person.

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 2 August 2015. He submitted a non-refoulement claim on 6 July 2017 and was interviewed by the Director of Immigration (“the Director”) on 25 July 2017.  The Director dismissed his claim under all heads, by Notice of Decision on 28 July 2017.  He appealed that Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Siu Chak‑yu, heard him on 21 November 2017.  The adjudicator refused his appeal on 8 December 2017.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 21 December 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 12 October 2018.  He had 14 days from that date to appeal that decision which would have expired on 26 October 2018.  By way of summons dated 27 November 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 as that forms part of the consideration of the court as to whether there is good reason to allow an extension of time to appeal.  The applicant claims that upon release from Castle Peak Bay Immigration Centre (“CICC”) in January 2018, he informed the Immigration Department of his new address and presumed that they would forward that change of address to all relevant authorities.  Thereafter he says that he did not receive the Call‑1 Form or sealed order dated 12 October 2018 until 21 November 2018.  He provides no further explanation.  He accepts he made no effort to progress his application with the High Court.  The court file suggests that it was properly served upon the address given at that time, which was CICC.  Subsequently, the court itself tracked down his new address and it was served upon him at that address which was 3A, 3/F, 70-74 On Ning Road, Yuen Long on 21 November 2018.  It is therefore clear that if the court had been provided with his new residential address in the proper manner, the applicant would have received the Call-1 and order promptly.

Conclusion

6.  The applicant has now been in Hong Kong since 2015.  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.  He knew that he had an application for judicial review pending and that it was incumbent upon him to progress it properly.

7.  In any event, I have considered his underlying application.  It has no merit as explained in the initial refusal of leave.  His claim arises out of a private dispute over land which resulted in a single assault albeit that the applicant claims his leg was fractured thereby.  Even so, he did not report the incident to the police or seek any other redress.  On the basis of hearsay evidence that his assailant wished to kill him, he left India.  There were no grounds of review placed before the court and there was no complaint as to error of law or procedure or unreasonableness on the part of the Adjudicator.  Before this court today there was also no complaint as to the decision to refuse leave.  The applicant can advance no grounds of appeal from that decision.  The applicant merely wishes the Court of Appeal to consider his situation afresh.

8.  Having considered the length of delay, reason for the delay and underlying merits of his application as well as any possible grounds of appeal, 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 27 November 2018 be dismissed.