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HCAL 429/2019
[2022] HKCFI 842
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 429 OF 2019
BETWEEN
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Gurung Bijay |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative
Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by The Honourable Mrs Justice Campbell‑Moffat:
1. Extension of time for leave to apply for Judicial Review be refused; and
2. Leave to apply for judicial review be refused
Observations for the Applicant:
Procedural history
1. The date and manner of entry of the applicant into Hong Kong is not disclosed within the papers. However, on 30 December 2016, the applicant submitted a non-refoulement (“NRF”) claim by way of written representation whilst detained in Castle Peak Immigration Centre (“CIC”). On 19 July 2017, he was served with a Notice to Persons Making a Non-refoulement Claim and provided with a blank claim form to be completed within 28 days. As he was in CIC at the time, this was explained to him by a Nepali interpreter and he was referred to the Duty Lawyer Service (“DLS”) for assistance. He was released upon recognisance on 27 July 2017 and no more was heard from him. He failed to submit the claim form within 28 days, despite being reminded of the deadline on 16 August 2017. Enquiries of the DLS revealed they could not contact him and had no instructions to act. As a result, on 17 August 2017, the Director of Immigration notified the applicant that his NRF was deemed withdrawn. This was done by way of letter to his last known address and also by way of service at the time and place of his next report under his recognizance on 8 September 2017.
2. On 21 December 2017, the applicant was arrested by the police. The papers do not indicate what he was arrested for but he was returned to the custody of the Director of Immigration on 23 December 2017. He has since been released upon recognisance once more but the date of release is unknown.
3. On 9 January 2018, whilst in CIC, the applicant made a request to re-open his non-refoulement claim. By way of a letter dated 18 January 2018, he was required to provide evidential support for his explanation that he had been ill and in financial difficulty. On
19 January 2018, the applicant reiterated his desire to have his application re-opened but failed to provide any documentary support. As a consequence, his application was considered on the basis of what was known on the papers and was refused on 12 February 2018 (“the Refusal”).
4. On 21 February 2018, the applicant appealed the Refusal to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Wong Chun-nam (“the Adjudicator”), considered his appeal on the papers under s37Y(2) and s37ZG of the Immigration Ordinance, Cap. 115, which he had clearly failed to comply with and had therefore refused his appeal on 12 July 2018.
5. The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 15 February 2019, at a time when he was once more detained in CIC, and did not request an oral hearing. The matter was therefore considered on the papers. This application is out of time. It has therefore been considered as an application to extend time for leave to apply for judicial review.
Form 86 out of time
6. In accordance with Order 53 rule 3, the Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review. This was dated 15 February 2019. Under Order 53 rule 4 an application for judicial review shall be made promptly and in any event within three months from the date when the grounds for the application first arose. Where the relief sought is a review of a case tried in a lower court, the relevant date from which time runs is the date of that decision. In this case time ran from 12 July 2018 and expired on
11 October 2018. The Notice of Decision of the TCAB was sent to the applicant at the address given by him to the TCAB and Director of Immigration. The Applicant has submitted no explanation for his delay in filing and has not sought leave for an extension of time.
7. An application for extension of time under Order 53 rule 4 is a discrete application quite separate from an application under Order 53 rule 3. I have nevertheless considered the principles[1] applicable to granting such an extension if an application had been made and those are:
1) the length of delay;
2) the reasons for delay;
3) the prospects of success in the intended appeal; and
4) the prejudice to the putative respondent if extension of time were granted:
8. In this case the applicant was late by just over four months and has not offered any explanation for this delay. From the chronology of events it would appear that the applicant only seeks to avail himself of the regime when he has been incarcerated. In view of his delay, he must satisfy the Court that there is a reasonable prospect of success in his intended leave application and that there will be no prejudice to the putative respondent before an extension of time will be granted. The Director acted wholly in accordance with the relevant legislation and procedural guidelines and was entirely correct to a) deem the original application by written representation to be withdrawn and b) refuse to re-open that application. The Adjudicator also properly considered the relevant legislation and could find no fault with the decision of the Director. There is no explanation before the Court as to why an extension of time for leave to apply for judicial review should be given nor any explanation as to why the Adjudicator was wrong to determine the matter as he did. I can find no error of law or procedure in the decisions made. The applicant’s claim is therefore not reasonably arguable and does not have a realistic prospect of success.
9. This application is dismissed as being out of time and leave for extension of time is refused.
Dated the 29th day of March 2022.
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(Trista Wong) |
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for Registrar, High Court |
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
Notes for the Applicant:
If the Applicant intends to appeal against the order refusing to extend the period for leave to apply for judicial review to the Court of Appeal, he/she or his solicitors must: |
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a) first apply to this court within 14 days of the date of this order by way of summons for leave to appeal; and
b) when filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;
c) the court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;
d) if the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions |
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Sent to the Applicant
on 29/03/2022
Gurung Bijay
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 29/03/2022
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10518/18/2/402/N426
Director of Immigration
Putative Interested Party’s ref. no.:
L/M (17825) in ImmD RA 7/37/C;
ImmD RLS1/12/791/2018;
RBCL 3466/15
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Chee Fei Ming v Director of Food and Environmental Hygiene [2015] 4 HKC 134; Wong Yuk Man v Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015). Kwok Cheuk Kin v Leung Chun Ying CACV 110/2017; MI & Anor v Permanent Secretary for Security CACV 162/2017.
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