Mohammad Eshan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1138/2017

[2018] HKCFI 1903

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1138 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:

Extension of time for leave to apply for judicial review be refused.

Observations for the Applicant:

1.The applicant entered Hong Kong legally on 18 April 2014 and overstayed from 26 April 2014.  He was arrested by the police on 23 May 2014 and submitted a non-refoulement (“NRF”) claim by way of written representation on 28 May 2014.  He was released upon recognisance on 27 June 2014.  His NRF claim form was submitted on 31 December 2015.

2.The applicant attended a screening interview on 21 January 2016.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 10 March 2016 and by Notice of Further Decision (re BOR 2) on 8 February 2017.  The adjudicator of the TCAB, Mr Gregory Brock (“the Adjudicator”), heard him on 20 February 2017.  The Adjudicator refused his appeal on 29 March 2017.

Background to claim

3.The applicant is an Indian national, born on 4 November 1983 in Kolkota.  Between 2011 and 2012, the applicant worked in Thailand, thereafter, until 2014, he worked in Saudi Arabia.  In early 2014, the applicant maintains that he was running his own business in Hong Kong.

4.The applicant’s claim is based upon his operation of the Mominpore Welfare Bustee Committee (“the Club”), which illegally occupied government land and which he maintains sought to educate poor children, which it did by raising donations from the general public and political parties.  Although the applicant had originally been its General Secretary at the time of its inception in 2010/11, he had thereafter been working abroad.  Whilst he was away from India, the Club came under scrutiny from the All India Trinamool Congress (“TMC”), which considered that the Club was operating illegally.  During a return visit to India in January and February 2014, the applicant was involved in negotiations to include TMC members in the Club and in its management.  In one such meeting a fight broke out and the police were called.  No one was arrested but several people required medical treatment on both sides of the argument.  The Club was closed down but whilst the applicant was in Hong Kong in April 2014, another fight broke out in which a Club member was killed.  The perpetrator was apprehended and prosecuted.  Even though the applicant had been out of the country for some three years, the applicant believes variously that if he returns to India, a) he will be prosecuted for illegally operating the Club, or b) the TMC might kill him; or c) he will be under pressure to continue working for the Club because it is profitable; or d) the killer’s relatives might harm him or put him in jail because the imprisonment of the killer was his fault; and in addition that, e) he had been previously assaulted whilst attending political rallies and was being looked for by his political opponents; also, f) his wife had been mentally tortured as she had received verbal insults that her husband was a thief, deceitful and would not return to her.

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 22 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 27 March 2017.  The Notice of Appeal should therefore have been submitted by 27 June 2017.  It was just short of six months late.  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.  I have never the less considered the principles[1] 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.

6.In this case the applicant has not offered any explanation for this delay.  In view of that omission, 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.  Given the following findings, the latter need not be considered.

7.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.  The applicant’s claim as explained above is not reasonably arguable and does not have a realistic prospect of success.  The applicant was considered a “wholly unreliable witness”by the Adjudicator who dealt with his case in a wholly proper way.  The applicant’s grounds of appeal mirror almost exactly those received by this court in respect of other leave applications and bears little resemblance to, or connection with, the hearings in question.  It has very obviously been amended to add the applicant’s nationality, the relevant dates and the name of the Adjudicator.  Grounds of this kind are to be deprecated.  In any event, for the reasons given above, this application is dismissed as being out of time.

8.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 Rules of the High Court.

Dated 27^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