Munatsi Kingsley v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 925/2017

[2018] HKCFI 2149

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 925 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:

Procedural history

1.The Applicant entered Hong Kong legally on 23 June 2008 and was arrested by the police for overstaying on 12 April 2014.  He was transferred to the Immigration Department on 15 April. He was convicted of overstaying on 26 April 2014 and sentenced to six months’ imprisonment. He was discharged on 11 August 2014 and submitted a non-refoulement (“NRF”) claim by way of written representation on 12 August.  He was released upon recognisance on 7 September 2014 and his NRF claim form was submitted on 12 January 2016.

2.The Applicant attended a screening interview on 18 March 2016.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 26 April 2016 and by Notice of Further Decision (re BOR 2) on 27 April 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 4 May 2016.  The adjudicator of the TCAB, Ms Mary Yuen (“the Adjudicator”), heard his appeal on 10 May 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 7 July 2017.

Form 86 out of time

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 21 November 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.  I have nevertheless considered the principles applicable to granting such an extension if an application had been made and those are

a)  the length of delay;

b)  the reasons for delay;

c)  the prospects of success in the intended appeal; and

d)  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).

4.In this case the Applicant was late by 45 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.  The Applicant’s claim as explained above is not reasonably arguable and does not have a realistic prospect of success.

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

Dated 29^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