JAITEH MOMODOU L v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

HCAL 960/2017

[2020] HKCFI 2758

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 960 OF 2017

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BETWEEN
	JAITEH MOMODOU L.	Applicant
and
	TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE	Putative Respondent
and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

___________________

Before: Hon Campbell‑Moffat J in Chambers

Date of Hearing: 28 October 2020

Date of Decision: 28 October 2020

___________________

D E C I S I O N

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Introduction

1.  This is an application dated 5 October 2020 to appeal my decision of 5 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 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 17 June 2014 and thereafter overstayed.  He was arrested on 6 March 2015.  He was convicted of overstaying on 20 April 2015 and of Trafficking in Dangerous Drugs on 18 May 2015.  He received a 12 months 2 weeks’ sentence.  He was convicted of the same offence once more on 14 March 2017 and this time he was sentenced to a term of imprisonment of 15 months.  He submitted a non‑refoulement claim on 14 February 2017 and was interviewed by the Director of Immigration (“the Director”) on 21 June 2017.  The Director dismissed his claim under all heads, by Notice of Decision on 28 June 2017.  He appealed those Decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Ian Candy (“the Adjudicator”), heard him on 24 October 2017.  The Adjudicator refused his appeal on 3 November 2017.  

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 27 November 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 5 June 2020.  He had 14 days from that date to appeal that decision which would have expired on 19 June 2020.  By way of summons dated 5 October 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 applicant gave no reason within his Affirmation in support as to why this application was late other than to say that he was not aware of the time restrictions despite the fact that it is clearly laid out on the last page of the Form CALL‑1.  The Court file suggests that it was served upon the address provided to the Court by the Immigration Department but that the correspondence was returned.  The address the applicant uses today is in fact different.  A further letter was sent to his current address to confirm the hearing today and he was spoken to personally on the telephone.  He nevertheless failed to appear.  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] and, if possible a telephone number for communication purposes.  The consequences of any delay arising from failing to do so will fall upon the litigant.[3]  There is no excuse for failing to attend today when he was communicated with personally.

7.  Even if the Court did accept that the explanation given for the delay within his Affirmation in support was a reasonable one, 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 this application truly seeks to review the exercise of a judicial function and in so doing indicates a reasonable prospect of success in the intended appeal[6].  Unfortunately, as the applicant failed to attend, the Court has no other argument to rely upon other than that provided within his Affirmation in support.

8.  As the role of the Court in judicial review is not to provide a further avenue of appeal from the Decisions of the Director and the Adjudicator, it follows that an appeal from this Court should not be founded upon any attempt to appeal those same decisions.  It is an appeal from the decision of this Court and the applicant should look to draft grounds of appeal on that basis which should be indicated within his Affirmation in support.

Conclusion

9.  The applicant has now been in Hong Kong since 2014. He has been interacting with various government agencies, in particular the Correctional Services Department, since that date.  The explanation he has offered to this court by means of his Affirmation in support, as to why he did not receive the order is not acceptable.  The onus was upon him to attend and expand upon that Affirmation.  He was given an opportunity to do so but has failed to attend.  

10.  In any event, I have considered his underlying application.  It has no merit as explained in the initial refusal of leave.  He was involved in a car accident in which two small boys died and he fled to avoid his responsibility for their deaths.  There were no grounds of review within his original Form 86 in respect of how his non‑refoulement claim had been handled by Mr Candy and none could be ascertained from the papers.  There was no complaint within his Affirmation in support as to its decision to refuse leave.  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.

11.  The applicant’s summons dated 5 October 2020 be dismissed.

(A P Campbell‑Moffat) Judge of the Court of First Instance High Court

The applicant, acting in person, is absent.