Md Lipton Khan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2325/2019

[2025] HKCFI 843

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2325 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge To:

1.  Extension of time to apply for leave for Judicial Review be refused; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 13 August 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 25 October 2017 (the “2017 Decision”) and the decision of the Director of Immigration (the “Director”) in his Notice Further of Decision dated 6 January 2017 (the “2017 Notice”).

2.The leave application was filed 21 months and 20 days after the date of the Decision sought to be reviewed. Order 53, rule 4(1) of the Rules of the High Court provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. An application made after three months is deemed to have been made with undue delay. By 13 August 2019 when his application was filed, it is more than 18 and half months out of time. Extension of time to file the leave application is required.

3.In considering whether to grant extension of time to file a leave application, the court takes into account (i) the length of the delay; (ii) the explanation for the delay; (iii) merits in the substantive application; (iv) the balance of prejudice to the applicant and the proposed respondent if extension of time is granted; and (iv) whether the application raises questions of general public importance which are likely to have to be resolved by the courts in any event: see AW and Director of Immigration[1]. Merits is usually a very important factor. But, it was also held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[2] that where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”. The delay in this case is so substantial that in the absence of a reasonable explanation, leave may be refused on this ground alone without consideration of merits.

Extension of time to file the leave application and conclusion

4.Despite clear directions in the Form 86 that an applicant is required to state his grounds for application and the reasons for delay, if any, the Applicant provided neither. At the hearing this Court attempted to explore the reasons for the delay with him. His explanation for the delay is that he was held in custody at the material time, but was unable to give particulars. When further questioned, he said he received the Decision at home, not while he was in custody and nine months later he made the leave application. He has no reasonable explanation for the delay.

5.The Court does not accept that it took him about eight months to take out the application. The delay of more than 18 and half months is inordinate. It demonstrates both an absence of will to prosecute the application and reflects a lack of underlying merits in the intended judicial review. The application is a typical abuse of process which must be refused. There is no need to consider the merits of the application.

6.For the above reasons, extension of time to file the leave application as well as the leave application are refused.

Dated the 4^th day of March 2025

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