Udeh Dominic Onyemaechi v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 785/2017

[2018] HKCFI 1683

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 785 of 2017

BETWEEN

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

Following;

	consideration of the documents only;     or
	consideration of the documents and the Applicant being present/absent in open court;

Order by The Honourable Mrs Justice Campbell-Moffat:

Leave to apply to extend time be refused.

Observations for the Applicant:

Procedural history

1.The Applicant entered Hong Kong legally on 22 January 2008 and overstayed from 6 February 2008.  He was arrested by the police on 19 October 2009 and submitted a non-refoulement (“NRF”) claim by way of written representation on 23 October 2009.  He was released upon recognisance on 15 November 2009.  His NRF claim form was submitted on 10 October 2014.

2.The Applicant attended a screening interview on 23 December 2014.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 5 January 2015 and by Notice of Further Decision (re BOR 2) on 26 October 2016.  The Adjudicator of the TCAB, Yu Cheuk-man, heard him on 12 December 2016.  The Adjudicator refused his appeal on 7 July 2017.

3.In accordance with Order 53 rule 3, the Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review.  This was dated 19 October 2017.  Under Order 53 rule 4 an application for judicial review shall be made promptly and in any event within three months from the date when the grounds for the application first arose.  Where the relief sort is a review of a case tried in a lower court, the relevant date from which time runs is the date of that decision.  In this case time ran from 7 July 2017.  The Notice of Decision was sent to the applicant’s registered address; the same address he relies upon for these proceedings.  The Applicant has submitted no explanation for his delay and has not sought leave for an extension of time.  There is no good reason before the Court as to why an extension of time for leave to apply for judicial review should be given.  Accordingly, this application is dismissed as being out of time.

4.Where the Applicant intends to appeal this refusal to grant leave to extend time, he must appeal this decision to the Judge against whose order his appeal is sought, within 14 days of the date of this order, in accordance with s14AA of the High Court Ordinance, Cap 4 and Order 59 rule 2B of the Rules of the High Court.

Dated 27^th day of July 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