Jarju Bakary v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1106/2017

[2018] HKCFI 1824

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1106 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 9 July 2014 from China and surrendered to the Immigration Department on expiration of his permission to stay on 8 October.  He was released upon recognisance on the same day.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 14 November 2014.

2.On 26 August 2016, the Applicant was arrested for Trafficking in Dangerous Drugs and has been on remand in Lai Chi Kok.  He is currently in Castle Peak Bay Immigration Centre.

3.The Applicant was required to attend a screening interview on 3 January 2017, but failed to attend as he claimed to be unfit.  A medical certificate was not provided until 17 February 2017, which indicated the Applicant had a cough and that he did not seek medical assistance until 5 January 2017, two days after the interview.  Subsequent to that failure to attend, the Director sought further clarification in writing from the Applicant, which was provided.  Given the context of the claim, the Director took the view, that sufficient time and opportunity had been given to the Applicant to support his claim and did not accede to a re-scheduled screening interview.  The Director of Immigration (“the Director”) dismissed his claim on all grounds under the Unified Screening Mechanism (“USM”), by Notice of Decision (“the Decision”) on 21 February 2017.  The Applicant appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 2 March 2017.  The Adjudicator of the TCAB, Mr William Lam, heard him on 11 July 2017 and considered his appeal on all applicable grounds.  The Adjudicator refused his appeal on 21 July 2017.

4.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 19 December 2017 and did not request an oral hearing.  He is out of time.  The matter was considered on the papers.

Form 86 out of time

5.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 December 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 21 July 2017.  The Notice of Decision was sent to the Applicant in Castle Peak Bay Immigration Centre; 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. I have nevertheless considered the principles applicable to granting such an extension if an application had been made and those are 1) the length of delay; 2) the reasons for delay; 3) the prospects of success in the intended appeal; and 4) the prejudice to the putative respondent if extension of time were granted: Chee Fei Ming v Director of Food and Environmental Hygiene [2015] 4 HKC 134; Wong Yuk Man v Ng Leung Sing & Anr [2016] HKCU 157 (HCMP 3217/2015).

6.In this case the Applicant was late by 59 days and has not offered any explanation for this delay.  In view of that, he must satisfy the court that there are real prospects of success in his intended leave application and that there will be no prejudice to the putative respondent before an extension of time will be granted.  There is no reason at all before the Court as to why an extension of time for leave to apply for judicial review should be given.  I have therefore considered the information available to the court and the background and basis of his claim.

7.The Applicant is a Gambian national.  He comes from Ebo where he carried on a business selling mobile phones and accessories between 2000 and 2007.  The Applicant is divorced with two children living with their mother and has no particular political, religious or social affiliation.  At some point in 2007, the Applicant assisted an unnamed third party to evade arrest but was, as a result, arrested himself.  He was detained, along with his brothers, for three days before being bailed.  During his detention the police made him aware of the fact that they believed the third party to be a criminal and that it was an offence to harbour a criminal.  The Applicant has made no complaint about the way he was treated whilst in detention.  Nevertheless, the Applicant was of the view that he may be harmed or killed by the police at some future date and he fled the country making his way to Senegal, where he stayed until 2014.  Whilst in Senegal, the Applicant applied for and obtained a Gambian passport.  In July 2014, the Applicant made his way to Hong Kong via Kenya and China.  He entered legally on 9 July 2014.

8.The Applicant’s claim for judicial review, as explained above, is not reasonably arguable and does not have a realistic prospect of success.  I come to that conclusion having considered the papers carefully.  I have not found any error of law or procedure.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  Despite the onus being upon the Applicant, the Director and Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately.  There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

9.Accordingly, this application is dismissed as being out of time.

10.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 section 14AA of the High Court Ordinance, Cap 4 and Order 59 rule 2B of the Rules of the High Court.

Dated 15^th day of November 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