Re Rasel

HCAL 115/2017

[2019] HKCFI 1561

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 115 OF 2017

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Before: Deputy High Court Judge K. W. Lung in Chambers

Date of Hearing: 14 March 2019

Date of Decision: 19 June 2019

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D E C I S I O N

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The application

1.The applicant is an illegal immigrant and he lodged a non‑refoulement claim with the Director of Immigration (“the Director”). The Director rejected his application and he appealed to the Torture Claims Appeal Board/Non‑refoulement Claims Petition Office (“the Board”). Having considered his evidence, the Board, by its Decision dated 30 March 2017 (“the Board’s Decision”), rejected his appeal and confirmed the Director’s Decisions.

2.Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form 86 to apply for leave for judicial review of the Board’s Decision. He had appeared before Deputy Judge Woodcock, who by Order dated 20 October 2017 refused to grant him leave to apply for judicial review of the Board’s Decision. The Deputy Judge had given the reasons for rejecting his application in Form Call‑1 dated 20 October 2017.

3.The applicant intends to appeal to the Court of Appeal against the Deputy Judge’s decision. However, he is out of time under Order 53, rule 3(4) of RHC. The deadline for him to appeal should be 14 days from 20 October 2017. He took out a summons for time extension for his appeal on 28 January 2019. He is therefore more than 15 months late.

The applicant’s affirmation

4.The applicant filed an affirmation in support of his application. In his affirmation he said that he did not receive Form Call‑1 because he

“was threatened by the Immigration officer from CIC to be detained, because the officer from the CIC told me that my Leave to apply for judicial review is refused and he want to detained me and send me back to my country. Which why immediately I apply to the court another set of Form 86.”

5.In his affirmation, he put down his address as Room B1, Flat B, 1/F, Tung Bo House, 464-468 Castle Peak Road, Kwai Chung, Kwai Tsing, New Territories, Hong Kong. This address is different from the one to which the court sent Form Call-1 to the applicant. Obviously, the applicant had changed his address without telling this Court.

6.It is the applicant’s responsibility to update the court’s record of his corresponding address from time to time. There is no reason he should not do it.

7.In the applicant’s affirmation, the applicant had not stated in what respect Deputy Judge Woodcock had made any mistake or committed any error in making her decision refusing leave to him to apply for his judicial review.

Discussion

8.In Re: Rana Jaswant [2019] HKCA 102, CAMP 160/2018, 6 March 2019, the Court of Appeal held that this Court has the jurisdiction to deal with this application under Order 59, rule 15 of RHC. See paragraph 8.1.

9.In the above judgment, the Court of Appeal also held that to consider whether time extension should be granted, the court has to consider (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 [8.6].

10.As said before, the applicant is 15 months late. His reason for the delay is that he did not receive the court’s Form Call‑1. There is no reason why he should not inform the court his new address. In the circumstances, he is deemed to have received the court’s Form call 1 at his last known address. What is more important is that I consider he had no reasonable prospect of the intended appeal as he has not set out any reasons to say that the Deputy Judge was wrong.

11.In the circumstances, I refuse to grant the applicant extension of time to appeal against the Court’s decision to the Court of Appeal. Accordingly, I dismiss his application.

The applicant appeared in person