DOUCARE ADAMA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 526/2017

[2020] HKCFI 2249

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 526 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 29 July 2020 to appeal my decision of 15 May 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 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 legally on 30 March 2014 but thereafter overstayed.  He surrendered to the Immigration Department on 7 April 2014.  He submitted a non‑refoulement claim on 8 September 2014 and was interviewed by the Director of Immigration (the “Director”) on 16 December 2014, 11 March 2015 and 6 April 2016.  The Director dismissed his claim under all heads, by Notice of Decision on 19 July 2016 and by Notice of Further Decision on 17 July 2017.  He appealed those Decisions to the Torture Claims Appeal Board (the “TCAB”).  The adjudicator of the TCAB, Mr Fraser Syme (the “Adjudicator”), heard him on 25 July 2017.  The Adjudicator refused his appeal on 4 August 2017.  

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 17 August 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 15 May 2020.  He had 14 days from that date to appeal that decision which would have expired on 29 May 2020.  By way of summons dated 29 July 2020, 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].

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 Court file suggests that the applicant’s address was Room B, 6/F, 28 Fung Yi Street, To Kwa Wan at the time of his Form 86.  A month later, in August 2017, it had changed to Room B, 2/F, 165 Queen’s Road West, Sai Ying Pun, which was originally referred to as the address of his solicitor in his Form 86 and is on his Form 8 as his address but referred to as in Sheung Wan.  This Form 8 was issued on 14 May 2018.  The first Form CALL‑1 was sent to the Sai Ying Pun address but was returned.  However, the Court file now suggest that we are corresponding with the applicant at Room C, Unit D4, 4/F, Tung Fat Building, 45-61 Kam Ping Street, North Point, although I cannot see how that change of address came about.  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]

7.  There was no explanation given for the delay but 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.  The question for the Court is whether any submissions truly seek to review the exercise of a judicial function and in so doing indicate a reasonable prospect of success in the intended appeal[6].  There were no submissions.

Conclusion

8.  The applicant has now been in Hong Kong since 2014. He has been interacting with various government agencies since that date.  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.

9.  The applicant’s summons dated 29 July 2020 be dismissed.