Mr. Joydul Miah v. Torture Claims Appeal Board

HCAL7/2017

[2019] HKCFI 1863

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAL LIST No. 7 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 oral submissions by the Applicant in open court;

Order by the Honourable Mr. Justice Li:

Extension of time to appeal refused.

Observations for the Applicant:

1.The applicant is from Bangladesh. He was born on 1 January 1974. He first entered Hong Kong on 9 September 2005 on a valid passport. During the interim, he left Hong Kong for China twice. He last returned to Hong Kong again on 8 October 2005. He overstayed in Hong Kong after expiry of his visa since 11 October 2005.

2.He had applied for refugee status with UNHCR in 2006. He did not follow up the application.

3.He was arrested by the police on 13 December 2007. He lodged his torture claim on 1 January 2008. He was released on recognisance since 12 January 2008. The Director of Immigration rejected his non-refoulement claim on 30 January 2015.

4.The TCAB rejected his appeal on 19 December 2016.

5.He applied for leave to judicial review the decision of TCAB on 6 January 2017. An oral hearing was held on 17 August 2017. This court refused leave on 22 January 2018. A copy of the Call-1 Form was sent to his updated address.

Application for extension of time to appeal

6.On 20 June 2019, the applicant applied, by way of summons, for extension of time to appeal. A hearing was held on 16 July 2019.

7.The applicant told this court that he had never received the Call-1 Form sent to him. He only learned of the order when he reported to the Immigration Department at Tuen Mun. He was directed to the Immigration Department at Wan Chai where he was given a copy of the Call-1 Form on 14 June 2019. By that time, the period for appeal had expired.

8.In support of his application, the applicant produced a letter which purported to have a wrong address printed on it. He relied on that letter to show that he had not received the Call-1 Form.

9.This court pointed out to him that the letter produced was sent by TCAB. This court then showed him a copy of the letter sent on 23 January 2018. The correct address—Flat D, 4/F., 112, 114 & 116 Ki Lung Street, Sham Shui Po, Kowloon—was used. In fact, this address was confirmed by the applicant at the hearing on 17 August 2017. There is no record in the court file that the letter was returned.

10.The applicant confirmed that the address used by this court was correct. He had no intention to mislead the court. He insisted that he had not received the Call-1 From. This court further pointed out that he should have contacted us earlier. He must know how to contact us as he had filed additional documents shortly after the hearing on 17 August 2017.

11.The applicant then accepted that it was his mistake not to make enquiry about the result of his leave application earlier. He further pointed out that he did not understand English.

12.In my judgment, the applicant is not reliable. I refused his application for extension of time to appeal. The reasons are:

a.  He initially indicated that he had not received the Call-1 Form because of the wrong address used. He produced a letter (TCAB letter) showing the wrong address.

b.  When pointed out to him that this court had used the correct address, he then said the TCAB letter was used just as an illustration.

c.  He had been out of time for about 18 months which was exceptional. The applicant should have made enquiries earlier.

d.  He had confirmed his address in the hearing on 17 August 2017. According to our file, there was no notification from the General Post Office that the Call-1 Form was returned for incorrect address.

e.  The summons for application to extend time was typed in English. All documents submitted in relation to the leave application was typed in English. The applicant must have some assistance from whatever sources to help him understand court documents in English.

13.The applicant may apply directly to the Court of Appeal for extension of time to appeal 14 days from the date of this Call-1 Form.

Dated the 26^th day of July 2019

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