Malkit Singh v. Torture Claims Appeal Board
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HCAL 625/2019 [2024] HKCFI 1242 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO 625 OF 2019
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge Bruno Chan: The application for leave to apply for judicial review be dismissed. Observations for the Applicant: 1.The Applicant who was subject or liable to removal by the Immigration Department had earlier raised a non-refoulement claim for protection but failed to return his completed Supplementary Claim Form (“SCF”) within the required period that his claim was treated as withdrawn under Section 37ZG(1) of the Immigration Ordinance, Cap 115, and when he subsequently sought to re-open his claim, his request was also refused by the Director of Immigration (“Director”) upon finding that he had failed to satisfy an immigration officer that due to circumstances beyond his control that he had not been able to return his completed SCF as required. 2.The Applicant then on 1 September 2017 lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which the Board did not conduct any oral hearing for his appeal and proceeded to deal with it on paper, and on 29 December 2017 the Board dismissed his appeal upon agreeing with the Director and upon finding that he had failed to provide sufficient evidence other than his bare assertions that due to circumstances beyond his control that he had not been able to complete the SCF as required. 3.More than one year later on 5 March 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward various grounds for his intended challenge but which appeared to be just some bare and irrelevant assertions of his without any necessary or relevant details or particulars or elaboration as to how and in what way did the Board err in its decision. 4.By then the Applicant was also seriously out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made. 5.As the last day of the three-month period for him to file his Form 86 fell on 29 March 2018, the Applicant was therefore almost one year late with his application, but for which he failed to provide any explanation for his such serious delay. 6.Moreover, on 24 April 2024 the Director in writing confirmed that the Applicant has since been removed from Hong Kong by the Immigration Department. 7.In the premises, as Section 37ZF(1) of the Immigration Ordinance stipulates that a torture claim or non-refoulement claim made by a claimant who is subject or liable to removal must be treated as withdrawn if the claimant for whatever reason leaves Hong Kong, as has the Applicant in the present case, I accordingly dismiss his leave application.
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
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