MOHAMED SHABDEEN MOHAMED GAZARI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 961/2017

[2019] HKCFI 1532

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 961 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 30 May 2019 for appeal from my decision of 30 April 2019, 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 in person and had the benefit of a Sinhalese 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 entered Hong Kong legally on 30 October 2002 and thereafter overstayed.  He was not arrested until 25 October 2013.  He submitted a non‑refoulement claim form on 22 September 2015 and was interviewed by the Director of Immigration (“the Director”) on 1 December 2015 and 31 March 2016.  The Director dismissed his claim under all heads, by Notice of Decision on 22 April 2016 and by Notice of Further Decision on 30 March 2017.  He appealed those decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Ms Gina Towney (“the Adjudicator”) heard him on 18 September 2017.  The Adjudicator refused his appeal on 16 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 30 April 2019.  He had 14 days from that date to appeal that decision which would have expired on 14 May 2019.  By way of summons dated 30 May 2019, 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 15.  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.

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 this forms part of the consideration of whether there is good reason to allow an extension of time.  He claims he did not receive the Order on time but gives no further explanation save that he accepted he had received all other official correspondence.  The court file suggests that it was properly served upon the address given at that time, which is the same address the applicant uses today. The applicant maintains that he only learnt of the refusal of leave from an officer of the Immigration Department.  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[1]. The consequences of any delay arising from failing to do so will fall upon the litigant[2].

6.  Even if the court does accept the reasons given for the delay, the court is required to examine whether there is any merit in the applicant’s appeal[3]. The applicant was unable to provide any reason for his appeal save for the fact that he cannot return to his country and his fear of harm coming to his family.  The question for the court is whether these submissions indicate a reasonable prospect of success in the intended appeal.

7.  The role of the Court of Appeal in judicial review is not to provide a further avenue of appeal from the decisions of the Director and the Adjudicator[4]. 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.  He has not done and could not identify any such grounds when given the opportunity to do so.

Conclusion

8.  The applicant has now been in Hong Kong since 2002.  He has been interacting with various government agencies since 2013 when he was finally arrested for overstaying and accepts he received all necessary documents and notifications and continues to do so.  The explanation he has offered to this court, as to why he did not receive the Order is not acceptable.

9.  In any event, 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 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.

10.  The applicant’s summons dated 30 May 2019 be dismissed.