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

HCAL466/2017

[2018] HKCFI 475

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 466 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.This applicant has filed a notice of application for leave to apply for judicial review on 28 July 2017.  He seeks to judicial review a decision of the Torture Claims Appeal Board (“TCAB”) dated 23 March 2017.  This application is late; it should have been on or before 23 June 2017 according to O53 R4.  The applicant has given no reasons for the delay as is required in the application form or in the supporting affirmation.  In fact, during the oral hearing he requested on 21 November 2017, the applicant admitted he did not realise this application was late.

2.The applicant sought leave to judicial review the decision of the TCAB which refused to grant him an extension of time to file his notice of appeal.  The following is a chronology of the events which led to this application;

a. The Director of Immigration (“the Director”) rejected the applicant’s non-refoulement protection claim on 22 March 2016.  According to section 37ZS(1) of Cap 115 the applicant must file a notice of appeal within 14 days after the notice of the decision unless late filing of that notice is allowed by the board under section 37ZT(3).

b. The applicant filed a notice of appeal on 26 July 2016 which was there for over 15 weeks late. The applicant did give a reason and that was because he was arrested for working illegally and sentenced to imprisonment.  He asked a friend to send his documents to him in prison and that was the reason his application was late.

c. The adjudicator of the TCAB refused the application for late filing on 23 March 2017.

An extension of time

3.This notice of application was filed late; it was not within three months of the date of the adjudicator’s decision (O53 R4). 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 absolutely no explanation for the delay and there is no good reason for extending time.  The applicant was unaware that it was late and therefore could offer no explanation.  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.  I would not grant an extension of time to file this application.

5.In any event, I did consider the adjudicator’s decision and the reasons he refused to grant an extension of time to file a late notice of appeal.  He considered the applicant’s explanation which was he was in prison at the time.  However, the applicant did not even say when he was in prison during this period or provide any documentary evidence of his period of detention.

6.The adjudicator however took the view, that even if the applicant was detained when the Director sent his decision of 22 March 2016 by hand to the applicant care of the duty lawyer service, according to section 37ZV(2) of the Immigration Ordinance that decision is conclusively presumed to have been served on the applicant.  He found that a 15-week delay in filing the notice of appeal was a serious and significant breach when only two weeks is allowed by the Ordinance.  Even allowing for the fact the applicant was in custody and that may have slowed down the process of appealing that decision, the adjudicator was unconvinced it would have required a total of 17 weeks to complete.  He then considered the effect of such a delay and wastage of costs to the efficient running of the Unified Screening Mechanism and did not find any special circumstances which would make it unjust not to allow late filing of the notice of appeal.

7.In the applicant’s affirmation, he gives details of dates that were not provided to the adjudicator.  He admits that he did receive the Director’s decision on or around 24 March 2016 but because he did not read English, he had not received any help with the contents of that decision before he was arrested by the police for working illegally on 4 or 5 April 2016 and imprisoned.  It was only after a few months that a friend visited him and helped him file his appeal to the TCAB, albeit 15 weeks late.  According to those dates, he was arrested two or three days before the deadline to file a notice of appeal expired.  His only excuse for not filing before was that he did not read English.

8.I was satisfied there was no evidence of procedural unfairness, error of law or a failure to adhere to a high standard of fairness from the adjudicator.  The decision he made not to grant an extension of time to allow for late filing was not Wednesbury unreasonable.  Even if this application for leave to apply for judicial review had been made within the prescribed time limit, I would have refused leave for judicial review as there is no realistic prospect of success.

Dated 13^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