Re Haider Zeeshan

HCAL 806/2018

[2019] HKCFI 661

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 806 OF 2018

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D E C I S I O N

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1.The applicant is an illegal immigrant and he lodged a non‑refoulement claim with the Director of Immigration (“the Director”) on 8 May 2014. After screening by the Immigration officer, the Director had, by Notice of Decision dated 22 August 2016 and a Further Notice of Decision dated 2 August 2017, collectively called (“the Director’s Decisions”) rejected his claim for the reason that his claim was unsubstantiated.

2.He appealed to the Torture Claims Appeal Board/ Non‑Refoulement Claims Petition Office (“the Board”) and he attended a hearing before the Adjudicator on 22 February 2018. Having considered his evidence, the Board, by its Decision dated 13 April 2018 (“the Board’s Decision”), rejected his appeal and confirmed the Director’s Decisions.

3.Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 to apply for leave for judicial review of the Director’s Decisions and the Board’s Decision. He asked for a hearing and appeared before this Court on 9 November 2018. Having considered the Board’s Decision and his submission before me, I refused to grant him leave for judicial review of the Director’s Decisions or the Board’s Decision. I have given the reasons for rejecting his application in Form Call‑1 dated 5 December 2018, which, as according to the record, was sent to the applicant at his last known address on the same day at Room D, 10^th Floor, Ocean View Court, 31‑33 Mody Road, Tsim Sha Tsui, Kowloon by registered post and ordinary post. This is the same address the Notice of Hearing dated 26 November 2018 was sent to the applicant and he attended the hearing at the scheduled time. Therefore, there is no reason that Form Call-1 was not received by him.

4.The applicant intends to appeal to the Court of Appeal against my decision. However, he is out of time.

5.Pursuant to Order 53, rule 3(4) of the RHC, by summons dated 10 January 2019, he applied for leave from this Court to appeal to the Court of Appeal out of time.

6.The applicant filed an affirmation in support of his application. In his affirmation he said that he never received Form Call‑1. Therefore, he had missed the 14‑day appeal period.

7.The considerations of whether time should be extended for the applicant to appeal out of time are set out by the Court of Appeal in Khan Mohammad Shadab [2018] HKCA 897, CAMP 75/2018, 4 December 2018 at §10:

“10. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted: see: Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22.01.2016).”

8.It is not necessary to consider the length of delay or the prejudice to the putative respondent if extension of time was granted for this application as the applicant fails for the reasons below.

9.The applicant said in his affirmation in support of this application that he had never received Form Call‑1 from the court. He did not know the time limit for his appeal.

10.The applicant appeared before this Court. Contrary to what he said in his affirmation, he confirmed that he received Form Call‑1 about two or three weeks before Christmas last year, which means he received it before he was detained in the Centre. He was detained about three days before Christmas last year. He was unable to explain why he had put the false information in his affirmation. He only said that the affirmation was prepared by his lawyer. He simply signed it without knowing the contents of it. This Court does not accept his evidence. Therefore, he has no reason for his delay in filing his appeal.

11.The applicant has no other evidence in support of his application.

12.He has not set out any reasons in his affirmation in support of this application to say that the reasons that I have given in Form Call‑1 are wrong or in error and he has a reasonable prospect of success in his intended appeal.

13.In the circumstances, I dismiss his application for the extension of time to appeal my decision made on 5 December 2018.

14.This Court has given its oral reasons in court, this written Decision will be delivered to the applicant at the Centre he is being detained by post within one week from the date of this hearing. In the meantime, the order in Form Call‑1 remains valid and effective.

The applicant appeared in person