Jarnail Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1388/2022

[2023] HKCFI 1427

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1388 OF 2022

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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 by staying in Hong Kong without permission 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 (“the Board”). Having considered his evidence, the Board, by its Decision (“the Board’s Decision”), rejected his appeal and affirmed the Director’s Decision.

2.He applied to the High Court for leave to judicial review the Board’s Decision. He failed all the way to the Court of Final Appeal.

3.The application then made an application for subsequent claim to the Director. By Notice of Decision dated 14 January 2021 (“the Director’s Notice of Decision”), the Director refused his application.

4.The application, by Form 86, made an application for judicial review of the Director’s Notice of Decision.

5.This Court, by Form CALL-1 dated 10 February 2023, on the reason that the immigration officer had failed to give adequate reasons in support of his conclusion, gave leave to the applicant to apply for judicial review of the Director’s Notice of Decision within 14 days after the Order in accordance with Order 53, rule 5 of the Rules of the High Court (“RHC”).

6.The applicant has failed to comply with the above Order as he has failed to issue the Originating Summons within time.

7.By an Order dated 17 April 2023, the Court made an Order (“the Unless Order”) that ‘unless the applicant issues and files his Originating Summons in compliance with the Order dated 10 February 2023 within 14 days from the date of service of this Order, the applicant be debarred from making his application for leave for judicial review of the Director’s Decision and he is deemed to abandon his application whereupon his application is dismissed forthwith.’

8.Time for the applicant to issue and file the Originating Summons expires on 3 May 2023.

9.The applicant filed a summons and an affirmation on 5 May 2023, applying for extension of time for filing the Originating Summons.

10.In his affirmation, he said that he received the Unless Order on 2 May 2023. According to the record, the Unless Order was sent to the applicant’s last known address on 17 April 2023, which is deemed to have been received on19 April 2023[1]. The letter was not returned from the Post Office. The applicant further said that he had to asked his friends to understand the “unless Order” of the Court and he will apply to the Director of Legal Aid for assistance after extension of time granted by this Court.

Discussion

11.Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, I decide to determine this application without an oral hearing.

12.The first Order of this Court granting leave to the applicant to apply for judicial review of the Director’s Notice of Decision was made on 10 February 2023. The applicant did not say that he did not receive this Order. Yet, he failed to issue and file the Originating Summons to apply for judicial review of the Director’s Notice of Appeal within the time stipulated. His failure has led this Court to make “the Unless Order” on 17 April 2023.

13.The applicant has delayed the application for leave for judicial review for 2 days only. In view of the serious consequences involving life and limbs of the applicant, I decide to give him a final chance by extending the period of the Unless Order for 14 days from the date of this Decision. The applicant should take this as his final chance.

14.Shortly after making this Decision, this Court received a letter from the applicant informing it that he had applied for legal aid on 9 May 2023, attaching the documentary proof from the DLA.

15.In those circumstances, pursuant to regulation 7A and section 15 of the Legal Aid Ordinance, 91, the proceedings are stayed for 42 days from 9 May 2023. The period of extension of the Unless Order is therefore extended accordingly to 27 June 2023.

The applicant was unrepresented.