TUFAIL USMAN v. TORTURE CLAIMS APPEAL BOARD/N-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 326/2018

[2019] HKCFI 575

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 326 OF 2018

___________________

___________________

___________________

D E C I S I O N

___________________

Introduction

1.  This is an application dated 28 February 2019 for appeal from my decision of 26 September 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.  

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 legally on 18 November 2010 and thereafter overstayed.  He submitted a non-refoulement (“NRF”) claim on 7 June 2016 and was interviewed by the Director of Immigration (“the Director”) on 20 October 2016.  The Director dismissed his claim by Notice of Decision on 31 October 2016.  He appealed that Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Ms Gina Towney, heard him on 3 January 2018.  The adjudicator refused his appeal on 28 February 2018.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 2 March 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 26 September 2018.  He had 14 days from that date to appeal that decision which would have expired on 10 October 2018.  By way of summons dated 28 February 2019, he seeks leave to appeal out of time.  The date of the summons is as a result of the applicant seeking to file his summons on 12 October 2018, at which point the summons triggered the listing of today’s date.  However, the applicant did not then file his summons on that date and only sought to file on 28 February with the assistance of court staff.  Whether the appropriate date is 12 October 2018 or 28 February 2019 (and the latter is clearly the operative date), the applicant is significantly out of time to appeal.

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.  There was no affirmation in support.  He claims he did receive the Order on time but did not know what to do and needed to seek advice from a friend.  To be fair to the applicant, he accepts that his purpose in seeking judicial review was to have his claim re-heard and he could not now advance any complaint against the adjudicator.  After explaining to him the nature of judicial review, he could not advance any complaint in respect of this court’s decision to refuse him leave.  He had no grounds of appeal.

Conclusion

6.  The applicant has now been in Hong Kong since 2010.  He has been interacting with various government agencies for the entirety of that period and accepts he received all necessary documents and notifications and has managed to properly progress his claim below.  Despite being given the opportunity to consider his position in respect of judicial review, he fairly agreed that all he sought was a re-hearing of his claim.  He now understands that is not the purpose of these proceedings.

7.  In any event, I have considered his underlying application, as I did previously, to ascertain whether there may be any merit in seeking to appeal and I can see none.  His underlying claim has no merit as was explained at some length in the initial refusal of leave.  There were no grounds of review and without any assistance, I could find none.  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.

8.  The applicant’s summons dated 28 February 2019 be dismissed.