Shahzad Ajmal v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 976/2017

[2018] HKCFI 2268

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 976 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 illegally on 18 February 2014 from Shenzhen and was arrested by the police on 28 April 2014 for illegally remaining.  He was transferred to the Immigration Department on the next day.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 30 April 2014.  He was released upon recognisance on 20 May 2014.  His NRF claim form was submitted on 7 November 2015.

2.The Applicant attended a screening interview on 26 January 2016.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 12 February 2016 and by Notice of Further Decision (re BOR 2) on 27 January 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Sin Ming-hei (“the Adjudicator”), heard his appeal on 27 February 2017.  He considered his appeal on all applicable grounds including BOR 2.  The Adjudicator refused his appeal on 28 July 2017.

Background to the claim

3.The Applicant was born in the Punjab and is married with a daughter.  He has previously worked in Dubai as a driver and as a salesman.  In 2013, the Applicant returned to Pakistan and opened a shop selling clothes.  As the Applicant supported Pakistan Tehreek-e-Insaf (“PTI”) he displayed a party flag outside of his shop.  In January 2014, he had a dispute with the occupants of a car parked outside his shop which displayed the flag of an opposing party, Pakistan Muslim League (Nawaz) (“PMLN”).  The dispute escalated and 10 to 15 supporters of PMLN gathered outside of the shop.  The three occupants of the car them disembarked carrying weapons and beat the Applicant with wooden sticks.  They then threatened the Applicant telling him to close his shop and not to report the incident to the police.  The Applicant received a broken arm and nose, which was dealt with in a local hospital.  The Applicant then fled to Islamabad with his family and, fearing that he and his family would be found and harmed by PMLN, the Applicant sold his shop and left for China on 17 January 2014.  He then entered Hong Kong illegally on 18 February seeking protection.  He was arrested on 28 April for illegally remaining.

Form 86 out of time

4.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 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 28 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.  

5.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.^[1]

6.In this case the Applicant was late by 32 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 was not found to be substantiated by the Director or the Adjudicator.  There is nothing in the papers to suggest the Adjudicator had acted improperly or unreasonably in coming to his decisions.  The Applicant’s case is not reasonably arguable and does not have a realistic prospect of success.

7.Accordingly, this application is refused as being out of time.

Dated 7^th day of December 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