Shan Ali v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1155/2017

[2018] HKCFI 1902

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1155 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.This application for judicial review is out of time.  However, because the background, including immigration history and basis of claim, are of relevance to any decision to allow or disallow late filing of an appeal, a short summary has been included.

Procedural history

2.The Applicant entered Hong Kong illegally on 18 November 2013 from the mainland and was arrested by the police for illegally remaining on the same day.  He was transferred to the Immigration Department on 19 November.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 20 November 2013.  He was released upon recognisance on 30 December 2013.  His NRF claim form was submitted on 4 January 2016.

3.The Applicant attended a screening interview on 23 March 2016.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 18 May 2016 and by Notice of Further Decision (re BOR 2) on 20 March 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 24 May 2016.  The adjudicator of the TCAB, Mr Fraser Syme (“the Adjudicator”), heard him on 3 April 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 19 April 2017.

4.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 29 December 2017 and is out of time.  The Applicant did not request an oral hearing.  The matter was therefore considered on the papers.  The issue of the late filing of the Notice of Appeal was considered as a preliminary issue.

Background

5.The Applicant is a Pakistani national.  He was born in Mirpur.  He is single, a Muslim and a member of the Jatt caste.  His claim arises out of a dispute over land between his father and his uncle in 2012.  As part of that dispute, the Applicant maintains that his uncle had him tied to a beam and beaten with fists and sticks which caused bruising and dislocation of a spinal disc.  He was hospitalised for a month and has difficulty walking to this day.  A year later, in 2013, he and his brother were again assaulted by his uncle and later the same day, they heard gun shots outside their home and threats to kill were made towards the Applicant and his brother.  Several reports to the police were made by various members of the family but no follow up action was taken.  Although the dispute had been between his father and his uncle, the Applicant and his brother fled home, whilst his father remained.  He had no problem obtaining a passport and went firstly to China intending at all times to come to Hong Kong.

Grounds of review

6.There were no grounds of review.  The Applicant asks for a re-hearing of his appeal.  He has not complained of any specific procedural irregularity, unfairness or unreasonableness.  The Applicant has a duty to state the grounds of his intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

7.Prior to that consideration, the court must consider whether to allow late filing of this application.

Form 86 out of time

8.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 29 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 3 April 2017.  It should have been submitted by 3 August 2017.

9.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.

10.In this case the Applicant was late by approximately four months and 16 days.  He 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.  The latter does not need to be considered.  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 summarised was rejected by both the Director and Adjudicator on wholly proper grounds.  His application for judicial review, such as it is, is not reasonably arguable and does not have a realistic prospect of success.  Accordingly, this application is dismissed as being out of time.

11.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 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