Pramanik Billal v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL354/2017

[2018] HKCFI 447

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 354 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Order by Deputy High Court Judge Woodcock:

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.The applicant is a Bangladeshi national who claimed to have entered Hong Kong illegally on 19 August 2013 only to be arrested on same day.  He lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 10 September 2015 and 31 March 2017.  He lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which was rejected on 28 January 2017.  He filed a notice of application for leave to apply for judicial review on 4 July 2017.

2.This notice of application was filed late; it was not within three months of the date of the adjudicator’s decision (Order 53 Rule 4).  It was just over two months late.  His notice of application does not set out any reasons for the delay as it should.  In fact, it does not acknowledge the application is late.  It does not seek an extension of time to file this application as it should.  His affirmation in support of his application makes no mention of the delay nor gives any reason for the delay.

3.I have considered the legal principles for granting an extension of time for judicial review, the following factors are significant such as the length of delay, the explanation given for the delay, the merits of the substantive application, the prejudice to both the respondent and the public administration and whether the application raised any questions of general public importance.

4.The delay is not insignificant, there is no explanation for the delay and there is no good reason for extending time.  In fact, there are no grounds put forward to support this application.  An oral hearing was set down because there were no grounds to give the applicant an opportunity to make submissions in open court and he had nothing to say.  The application, even on a review of the papers, does not raise any questions of general public importance.  Delay alone is enough to dispose of this application.

5.In any event, I did consider the adjudicator’s decision and the reasons he rejected the applicant’s appeal/petition.  He found the applicant’s evidence to be full of discrepancies and contradictions which seriously damaged his credibility.  He gave the applicant an opportunity to explain the discrepancies during the appeal hearing but he found his explanations were implausible.  The adjudicator set them out in full in his decision and he cannot be faulted for his finding the applicant was not a genuine claimant.

6.In his decision, the adjudicator correctly set out the law and key legal principles relevant to the four applicable grounds.  He set out the applicant’s claim and evidence.  He analysed the applicant’s evidence and gave reasons for coming to the conclusion why he did not find the applicant a witness of truth and could not attach any weight to his claim.  Even though there were no grounds put forward by the applicant, in reading his decision, I found no error of law by the adjudicator.  I saw no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

7.There would have been no prospect of success in this application.  I refuse leave for judicial review.

Dated 9^th day of March 2018.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

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