RE MUHAMMAD NAVEED

HCAL 356/2018

[2021] HKCFI 2618

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 356 OF 2018

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D E C I S I O N

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Introduction

1.  This is an application dated 26 May 2021, to appeal my decision of 30 June 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 attended the Court with the benefit of an 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 first submitted a non-refoulement (“NRF”)  claim by way of written representation on 2 March 2008.  His NRF claim form was never completed.  The Immigration Department wrote to him on 27 June, 18 July and 20 July 2016 respectively, informing him that his NCF must be completed by 25 July 2016.  He did not complete it by that date, nor did he seek an extension of time to do so.  As a result, the Director of Immigration (“the Director”)  treated his non-refoulement claim as withdrawn as of 26 July 2016.  A Notice of Deemed Withdrawal was issued on 27 July 2016.

3.  The Applicant sought to re-open his claim by letter dated 16 August 2016.  The Director wrote to the Applicant on 23 August 2016, requesting him to provide sufficient evidence in writing to satisfy an Immigration Officer that, due to circumstances beyond his control, he had not been able to return the completed non-refoulement claim form within the time limit.  He was required to do this by 30 August 2016.  He did not do so.  That application was therefore refused by the Director on 2 September 2016.

4.  The applicant sought to appeal that decision but was out of time as his Notice of Appeal was dated 16 August 2017, almost a year later.  The adjudicator of the Torture Claims Appeal Board, Mr Bruce Henry (“the Adjudicator”), dealt with the matter on paper on 23 February 2018 and explained his reasons for so doing.  The Adjudicator considered s37ZV(2)  and s37ZT of the Immigration Ordinance, Cap.115, which deals with late filing of a Notice of Appeal and the requirement for reasons and documentary evidence in support.  The Adjudicator dealt with the application as a preliminary issue and considered those matters as required under s37ZT(2)(a)  & (b).  Having considered all relevant material, the Adjudicator refused the application to allow late filing of the Notice of Appeal.

5.  The applicant filed a notice of application on a Form 86, seeking leave to apply for judicial review on 6 March 2018 and did not request an oral hearing.  The matter was therefore considered on the papers.  His only grounds were that the Adjudicator had acted unfairly and unreasonably without more.  His application for leave to apply for judicial review was refused on 30 June 2020.  He had 14 days from that date to appeal that decision which would have expired on 14 July 2020.  By way of summons dated 26 May 2021, he seeks leave to appeal out of time.

6.  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].

7.  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.  

8.  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 accepted he was late and gave no reason within his Affirmation as to why that was the case other than to say that he did not receive the letter until he came to the High Court on 26 May 2021.  He did not explain why he had done so. He maintained that he would suffer hardship if returned to his country.  The address provided upon the summons is located very close to the address he provided within his Form 86 but is the same address as that to which the Form CALL-1 was sent and that letter was not returned to the High Court.  It is therefore presumed to have been received.  The applicant maintains that he learnt of the refusal of leave when an officer from the Immigration Department informed him when he reported to the Immigration Department after June 2020.  He accepts he did nothing about it at that time.  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]. It follows that if the applicant is informed by the Immigration Department of the failure of his claim and/or judicial review, it is incumbent upon him to act upon that information and not wait over a year to take out a summons.

9.  Even if the Court had been prepared to accept that the explanation given for the delay was a reasonable one, which it does not, 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.  There was no such submission.  In the absence of any submission which truly seeks to review the exercise of a judicial function and in so doing indicate a reasonable prospect of success in the intended appeal[6], this application must fail.

10.  The applicant has now been in Hong Kong since at least 2008.  He has been interacting with various government agencies for 13 years and has successfully abused the system throughout.  The explanation he has offered to this Court, as to why he did not receive the order is not accepted.

11.  In any event, I have considered his underlying application contained within the papers.  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.  He has taken a wholly unacceptable stance towards progressing his claim at each and every level.  There is no complaint before the Court as to its decision to refuse leave.  The applicant merely wishes the Court of Appeal to consider his situation afresh so that he can remain in the jurisdiction for a while longer.  He still maintains that he has been unable to secure documentation to support his claim after 13 years.  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.

12.  The applicant’s summons dated 26 May 2021 be dismissed.