Khan Asad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL677/2017

[2018] HKCFI 496

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 677 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 Pakistani national who claimed to have entered Hong Kong illegally on 6 October 2013.  He lodged a non-refoulement protection claim on 17 October 2013 but his claim was treated as withdrawn by the Director of Immigration (“the Director”) on 6 October 2015.  His claim process was a laborious one and he made a fresh claim but on 1 April 2016 the Director ultimately refused to treat it as a fresh claim or reopen his claim.  On 9 February 2017, the applicant filed an application for leave for judicial review of the decision of the Director (“the 1^st application”) which was refused on 28 April 2017, see HCAL 32/2017.

2.At about the same time as filing this 1^st application, on 13 February 2017 the applicant filed an application to appeal out of time to the Torture Claims Appeal Board (“TCAB”) to appeal against the decision of the Director.  That application was 10 months late.  On 2 June 2017, the TCAB refused the applicant’s application for late filing of his notice of appeal; the adjudicator determined his reasons for the delay were unacceptable, the delay was a serious and significant failure to comply with the rules and in all the circumstances of the case it was fair and just to refuse his application.  There were no special circumstances which made it unjust not to allow the late filing.

3.On 25 September 2017, the applicant filed this application for leave for judicial review of the decision of the Director dated 1 April 2016 again and the decision of the adjudicator of the TCAB dated 2 June 2017, “the 2^nd application”.  Even this application is late, it should have been filed according to O53 R4 on or by 3 September 2017 therefore, it was 21 days late.  Moreover, he gives no reasons for the delay in filing of the 2^nd application as required in either the Form 86 or his affirmation.

4.I will repeat the chronology of events leading up to the applications and I quote from the decision of the 1^st application, HCAL 32/2017:

“a. On 17 August 2015, a ‘notice to persons making a non-refoulement claim’ and a non-refoulement claim form (“NCF”) were sent to him. The applicant declined duty lawyer services.

b. On 7 September 2015, the applicant was notified to return the NCF on or before 5 October 2015.  He was reminded of the consequences of non-compliance with the 28 day limit (pursuant to section 37Y(2) Cap 115).

c. On 6 October 2015, the applicant failed to return the NCF.  The Director treated claim as being withdrawn (pursuant to section 37ZG(1) Cap 115) on 16 October 2015, the applicant was informed of the decision by post.

d. On 22 February 2016 and 4 March 2016, the applicant submitted a fresh application for non-refoulement claim.  The Director treated it as a request to reopen the claim.

e. On 7 March 2016, the Director requested the applicant reasons for his failure to submit the NCF in 2015.  He was also told to file the documentary proofs and reasons to support his claim.  The Director requested the above to be made on or before 21 March 2016 (pursuant to section 37ZG(3) Cap 115).

f. On 1 April 2016, there was no response from the applicant. The Director refused to reopen the claim.

g. On 9 February 2017, the applicant filed an application for leave for judicial review of the decision of the Director.  (The 1^st application)

h. On 13 February 2017, the applicant filed an appeal to the TCAB to appeal against the decision of the Director.”

The Honourable Mr Justice Patrick Li went on to say in his decision in paragraph 8 “in failing to lodge an appeal to the TCAB, the applicant had not exhausted alternative procedures to challenge the decision of the Director.  There were no exceptional circumstances to justify his conduct.  This alone is sufficient to refuse leave application.”  He also said in paragraph 9 “in addition, the leave application for judicial review of the decision of the Director is about seven months after time… It is undue delay.  There is no explanation whatsoever from the applicant. This is also sufficient to refuse leave no matter the outcome of the appeal and the TCAB.”

The 2^nd application

The doctrine of res judicata and abuse of the court’s process

5.Can the applicant seek leave to judicial review the Director’s decision again?  No.  When asked if he had anything to say, he said a friend advised him to make that 1^st application and made a mistake.  The applicant cannot seek to re-litigate something which has already been decided.  This is the doctrine of res judicata.  An issue has already been decided which means the applicant cannot raise the same issue or cause of action again. To do so, is an abuse of  process.  It is a second bite of the cherry which is not permissible.  Therefore, in the 2^nd application, the only consideration is whether he can seek leave to judicial review the adjudicator of the TCAB’s decision.

Extension of time to file the application?

6.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.

7.In the hearing the applicant was given an opportunity to explain the delay in filing his 2^nd application for leave to apply for judicial review.  He said that he did not receive the TCAB decision until it was too late. His letter box was not secure and often letters are left lying around the ground and a friend brought it to him one day.  That was his bare explanation.  The delay is not insignificant, there is no good explanation for the delay and there is no good reason for extending time.  There are no proper grounds put forward to support this application.  The application does not raise any questions of general public importance.  Delay alone is enough to dispose of this application.  I would refuse to grant an extension of time to file this application.

No realistic prospect of success

8.In any event, I did consider the adjudicator’s decision to refuse to grant an extension of time to the applicant to file his appeal.  It was about 10 months late which the adjudicator considered serious and significant.  This led him to consider why the failure to file on time.  The applicant had given him some reasons that were weak and implausible as well as unsubstantiated with documentary or medical evidence.  The adjudicator went on to consider the need for these claims to be carefully considered in light of the seriousness of the outcome to asylum seekers but balancing that with the need to enforce compliance with rules, practice directions and court orders.

9.The adjudicator found no other matters that were revealed by the evidence from the applicant’s claim which would amount to special circumstances which would make it unjust not to seriously consider or even allow the late filing of the notice of appeal.

10.I would have found no error in the adjudicator’s decision, no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.

11.Even if the applicant had applied within the three-month time limit, I would have refused leave for judicial review because there was no realistic prospect of success.

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

Form CALL-1