Lokman v. Torture Claims Appeal Board/ Non Refoulement Claims Petition Office

HCAL 811/2017

[2019] HKCFI 449

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 811 OF 2017

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Before: Deputy High Court Judge Woodcock in Court

Date of Hearing: 13 February 2019

Date of Decision: 5 March 2019

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D E C I S I O N

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1.This is an application for extension of time to appeal against my decision dated 27 July 2018 refusing this applicant leave to apply for judicial review. The applicant may appeal as of right but has to observe the time limits to appeal an interlocutory order. Pursuant to Order 53 rule 3(4), the applicant had 14 days in which to apply to the Court of Appeal to appeal that decision. He failed to do so. He now requires and seeks leave to extend time to appeal against that order. This application is dated 21 December 2018 and he has supported it with an affirmation.

2.The applicant had filed a Form 86, a notice of application for leave to apply for judicial review on 26 October 2017.  He was legally represented and requested an oral hearing.  A notice of hearing was issued to the applicant’s solicitors on 8 November 2017 for a hearing date on 16 January 2018 but on 29 November 2017 the applicant filed a notice to act in person.  He was absent at the 16 January 2018 hearing.  Since the notice was served on his previous solicitors, the hearing was adjourned to 15 March 2018 and the notice was served again to the applicant’s last known address.  The applicant was absent at the second hearing despite that second notice. 

3.I set out the background to his claim in the Call 1 Form.  There was never any subsequent explanation for his absence, until now.  I considered the merits of his application on the papers.  The Applicant first came to Hong Kong in 1994 and overstayed; he was sent home after his arrest.  He came again and was deported in 2001 before coming again in 2007.  He then lodged a torture claim which was rejected in July 2012: he was deported in September 2012.  He was arrested again in April 2016 after entering illegally and lodged a second claim in June 2017. It was this second claim which I dealt with in my decision.

4.My order was dated 27 July 2018 and the applicant’s explanation in his affirmation is that he did not receive it because he was in custody serving a sentence at the time. In his summons, he said that he was arrested on 19 December 2017 and detained in Lai Chi Kok Detention Centre.  In his summons, he says “later I was transferred to 16 October 2018”.  At the hearing of this summons he explained that he was sentenced to 15 months on 2 February 2018 and was released on 16 October 2018.  He has since been detained at Castle Peak Bay Immigration Centre.

5.In his summons, he says that he did not receive the Call 1 Form sent to his former home address and he was told by friends to make enquiries about his Form 86 application.  It was not until he was detained at the Castle Peak Bay Immigration Centre after serving his sentence did he follow up with the Judiciary as to the progress of his action.  In essence, he did not comply with the time limits because he did not receive my order sent to his home address.  He was detained by Correctional Services at that time.  He made no effort to contact the Judiciary to inform it of his new address and detention; he was not proactive.  He said in open court that the police did not ask him and he did not tell the police.

6.He does state in his affirmation that his grounds of appeal are that he was not afforded an oral hearing.  A decision was made without an opportunity to clarify his situation in his country.  He criticises the decision for a reliance on country of origin information.

7.I do not find any reasonable explanation for his lengthy delay in bringing the intended appeal.  He did file a notice to act in person before his alleged arrest yet did not think to later inform the Judiciary of his change of address.  I am sure the applicant is well versed in the procedures and his duty to report a current address to the authorities because this is his second claim for asylum.

8.In any event, I find there is no merit nor any real prospect of success in the intended appeal.  The applicant was given an opportunity of two hearing dates and was absent.  I considered his application on the papers and found there to be no merit in his application.  I have considered his grounds of appeal and find no merit nor any real prospect of success.

9.I dismissed the applicant’s summons for an extension of time; it would not be in the interests of justice to grant such an extension.

The applicant appeared in person.