ALLY AYUBU JUMBE v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

HCAL 971/2017

[2020] HKCFI 2155

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 971 OF 2017

___________________

BETWEEN
	ALLY AYUBU JUMBE	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: 26 August 2020

Date of Decision:  26 August 2020

____________________

D E C I S I O N

____________________

Introduction

1.  This is an application dated 6 July 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 attend court for the hearing.  He was not assisted by 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 entered Hong Kong legally on 31 August 2014 and thereafter overstayed.  He was arrested by the police on 7 March 2015 and on 15 April 2016 he lodged a non-refoulement claim form, having served a period of imprisonment in the interim.  He was interviewed by the Director of Immigration (“the Director”) on 11 May 2016.  The Director dismissed his claim under all heads, by Notice of Decision on 27 July 2016 and by Notice of Further Decision on 4 August 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Ms Betty Kwan (“the Adjudicator”), heard him on 25 July 2017.  The Adjudicator refused his appeal on 25 August 2017.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 29 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 6 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 applicant stated that he did not receive the Form CALL-1 or Order within a reasonable period of time allowing him to appeal within the time frame.  I note this is similar wording and in a similar handwriting to other applications I have received, albeit he maintained that he had written the summons.  He gives no other reason within his affirmation as to why that was the case.  The court file suggests that it was properly served upon the address recorded by the Immigration Department at the time of service, which is not the same address the applicant uses today.  The documents were returned to the High Court as undelivered.  He submits that he changed addresses around the time of the Order and accepts that he did not inform the Court.  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].  That includes the ability to receive letters properly at the address given.  In this instance as of June 2020, he had not provided a correct address to either the Immigration Department or to the Court.  The consequences of any delay arising from failing to do so will fall upon the litigant.[3]

7.  Even if the Court did accept that the explanation given for non‑receipt and that the delay is a reasonable one (which it does not), the Court is 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 these 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].  He made no such submissions.

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.  This was explained in some detail to the applicant when he appeared but he clearly only wished to have his situation considered once more by the Court of Appeal.

Conclusion

9.  The applicant has now been in Hong Kong since 2014. He has been interacting with various government agencies since that date.  The explanation he has offered to this Court, as to why he did not receive the Order is not acceptable.

10.  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.  Nevertheless, the Court considered the papers with a view to identifying any grounds of review and could not do so.  In addition, 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.

11.  The applicant’s summons dated 6 July 2020 be dismissed.

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

The applicant appeared in person.