Sherpa Pemba v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1115/2017

[2018] HKCFI 1836

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1115 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:

1.This is an application for judicial review of the decision of the Torture Claims Appeal Board (“TCAB”) not to allow the Applicant to lodge his appeal against a Decision of the Director out of time, as well as the decision of the TCAB to confirm the Decisions of the Director dated 7 December 2015.  The circumstances in which those decisions were made serve as a salutary lesson to applicants and involves a convoluted process of failure to respond to timely reminders.

Procedural history

2.The Applicant first made a Non-refoulement Claim (“NRF”) by way of written representation on 23 October 2013.  On 14 December 2014, the Applicant had been provided with the “Notice to Persons Making a Non-refoulement Claim”, which includes a warning that the claim will be deemed withdrawn if the Applicant fails to return the NRF within 28 days of a request to do so.  On 15 December 2014, he had the benefit of representation from the Duty Lawyer Service (“DLS”).  By a letter dated 31 December 2014, he was requested to submit his NRF form within 28 days i.e. by 28 January 2015.  He was reminded of that request on 21 January 2015.  On 28 January 2015, the DLS requested an extension of 28 days to submit the NRF resulting in a letter of 29 January 2015, requiring the Applicant to now return his completed NRF by 18 February 2015.  He did not do so and by letter of 3 March 2015, the Applicant was informed that his claim had been deemed withdrawn as of 19 February 2015.  Included in that letter was a warning that any application to re-open his claim would need to be supported by sufficient evidence in writing showing that he had not been able to comply with the requirement due to circumstances beyond his control.

3.The Applicant did nothing for four months.  On 31 August 2015, he made an application to re-open his claim.  That application did not contain any evidence as to why the original NRF had not been submitted nor was there anything to suggest that his failure to submit the NRF had been due to circumstances beyond his control.  The Applicant relied upon the facts founding the basis of his original claim.  By a letter of 23 September 2015, the Director required the Applicant to provide information in support of his application to re-open his claim.  Because of a lack of response, a further letter dated 23 October was raised and was provided to the Applicant at the time he next reported to the Mau Tau Kok Report Recognisance Office (“MTKRRO”). He did not respond to that request despite having been recorded as receiving the letters of 23 September and October.  Therefore, by way of a letter dated 7 December 2015, the Applicant’s request to re-open his claim was refused and he was informed of his right to lodge an appeal but that he must do so within 14 days of 7 December.

4.The Applicant lodged an appeal on 13 February 2016, which was out of time. He lodged a Notice of Appeal Out of Time on 18 May 2016.  Thereafter the TCAB requested a written explanation, with evidence in support of the reasons for being out of time, as well as the reasons for failing to submit the NRF within time or at all.  On 25 May 2016, the Applicant submitted a written statement stating that he had changed address (the specifics of which were vague) and therefore did not receive any letters from the Director and asked for a further NRF to be sent to him.  This was patently untrue.  The Applicant’s Grounds of Appeal referred to his original claim but also maintained that the late filing of the Notice of Appeal was due to an injury and his subsequent hospitalisation as well as the hospitalisation of his fiancée.  He provided evidence that he had been admitted to Queen Elizabeth Hospital (“QEH”) on 3 December 2015 and discharged the next day.  He appears to have suffered injuries which required suturing.  This date covers the period when he should have received the letter dated 7 December 2015 which enclosed the notice to appeal within 14 days but does not account for the fact that he had received the two previous letters of 23 September and October requiring him to provide information when he was clearly fit to do so.  At that time even if the Applicant had subsequently changed his address but had not informed the Director, he had already been served with the letters at MTKRRO.  The Adjudicator found that the Applicant had not complied with section 37ZE(2). He had failed to supply satisfactory evidence in support of his application both as to the re-opening of his claim and as to his application to be allowed to appeal out of time.

5.For completeness, subsequent to the Applicant lodging his appeal against the Decision of the Director dated 7 December 2015, he made a further application to submit an NRF on 6 July 2017, 30 August, 18 September, 10 October and 17 October 2017, which were refused by way of letters dated 25 August and 26 October 2017.

6.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review of the decision of the TCAB, on 20 December 2017.  That also is grossly out of time.

7.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 20 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 17 August 2016 and should have been filed by 17 November 2016.  The Applicant has yet again submitted no explanation for his delay and has not sought leave for an extension of time.  I have never the less 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 & Anor [2016] HKCU 157 (HCMP 3217/2015).

8.In this case the Applicant was late by over eight months and has not offered any explanation for this delay.  I have also considered whether he could satisfy the Court that there are real prospects of success in his intended leave application against the decision of the TCAB.  The Applicant relies for this application upon his lack of education, representation or opportunity to have a hearing.  There is no automatic requirement to representation or for a hearing when an applicant fails to file documentation within the prescribed time limits.  Nevertheless, he was asked by the TCAB to provide his explanation and yet again failed to do so.  There is no reason at all before the court today as to why an extension of time for leave to apply for judicial review should be given either.

9.The Applicant’s claim as explained above is not reasonably arguable and does not have a realistic prospect of success.  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 s14AA of the High Court Ordinance, Cap 4 and Order 59 rule 2B of the Rules of High Court.

Dated 16^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