AMARJIT SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1733/2018

[2019] HKCFI 2853

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1733 OF 2018

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

Following;

Leave to apply for judicial review be refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.  The applicant is an Indian national who applied for non‑refoulement protection on the basis that his life was in danger if he returned to India.  In order to process the applicant’s non-refoulement protection claim, he had to complete certain forms for the consideration of the Director of Immigration (“the Director”).  He was served forms on 12 August 2016 and told he must return the completed form to the Immigration Department within 28 days, that is on or before 30 September 2016 unless he was allowed an extension.  

2.  A failure to complete a returned and completed form within the 28‑day time limit or any further period allowed by an immigration officer, results in a non‑refoulement protection claim being treated as withdrawn.  Such a withdrawn application may only be reopened if the applicant could provide sufficient evidence in writing to satisfy an immigration officer that the applicant had been unable to return the completed form as required due to circumstances beyond his control.

3.  A written request dated 2 September 2016 was served on the applicant requiring him to return the completed form on or before 30 September 2016. The claim would be treated as withdrawn if he failed to comply it.  Three reminder letters were sent to the applicant on 6 September, 13 September and 23 September 2016 informing him to submit the completed form on or before the deadline, failing which his claim would be treated as withdrawn.

4.  No complete form was returned by the applicant on the due date and on 1 October 2016 his non‑refoulement protection claim was treated as withdrawn.  A notice of deemed withdrawal of non‑refoulement protection claim was sent to the applicant on 3 October 2016.  In that same notice he was informed that his claim may only be reopened if he could provide sufficient evidence in writing that he had been unable to return the completed form as required due to circumstances beyond his control.

5.  By letter dated 14 November 2016, the applicant wrote to the Director requesting his claim be reopened because his life was still in danger at home.  By letter dated 17 November 2016, the Director informed the applicant that he had until 24 November 2016 to provide sufficient evidence in writing to satisfy an immigration officer that he had not been able to return the completed form as required due to circumstances beyond his control.  The applicant failed to provide any evidence in writing on or before 24 November 2016.

6.  On 30 November 2016, the Director wrote to the applicant and informed him that his written request to reopen his non‑refoulement protection claim was refused.  The Director decided not to reopen his claim for the reason that he had failed to provide sufficient evidence in writing to support his failure to return the completed form within the time limit because of circumstances beyond his control.

7.  The applicant then filed a notice of appeal/petition with the Torture Claims Appeal Board (“TCAB”) on 23 May 2017, nearly six months after the Director’s decision.

8.  The TCAB dismissed the applicant’s petition/appeal on 13 October 2017.  There was no hearing.  The adjudicator of the TCAB set out the chronology of the applicant’s non‑refoulement claim resulting in the Director refusing an application to reopen his non-refoulement claim.  The adjudicator also considered the relevant law and found that the Director was justified to refuse the applicant’s application to reopen his non‑refoulement claim.  He set out his reasons why in his decision.

9.  The applicant filed a notice of application for leave to apply for judicial review on 23 August 2018.  This notice of application was filed late; it was not within three months of the date of the adjudicator’s decision (Order 53 Rule 4).  It was over 10 months late.  His notice of application does not set out any reasons for the delay as it should.  In fact, it does not acknowledge the application is late, does not seek an extension of time to file this application as it should.  His affirmation in support of his application makes no mention of the delay, does not give any reasons for the delay nor does it in fact set out any grounds to support his application.

10.  He did not in fact requested an oral hearing but in light of the lack of grounds in his notice of application I erred on the side of caution and set down his application for hearing on 15 November 2019 at 9:30am.  The court has sent a notice of hearing by registered post to the applicant’s last known address supplied to the Immigration Department by the applicant who supplied it to the court at our request.

11.  The court had to request such an address because the applicant did not supply an address with his notice of application for leave to apply for judicial review.  The Immigration Department also supplied his reported mobile phone number.  The court called that number to remind the applicant of the court hearing pending the day before but a friend of the applicant informed the court that this mobile number was not one belonging to the defendant.  The applicant was absent on the date of the hearing.  I therefore consider the application on the papers.

12.  I have considered the legal principles for granting an extension of time for judicial review, the following factors are significant such as the length of delay, the explanation given for the delay, the merits of the substantive application, the prejudice to both the respondent and the public administration and whether the application raised any questions of general public importance.

13.  The delay is significant, there is no explanation for the delay and there is no good reason for extending time.  There are no grounds put forward to support this application.  An oral hearing was set down because there were no grounds to give the applicant an opportunity to make submissions in open court and he was absent.  The application, even on review of the papers, does not raise any questions of general public importance.  Delay alone is enough to dispose of this application.

14.  In any event, I did consider the adjudicator’s decision and the reasons he rejected the applicant’s appeal/petition.  I even considered the Director’s decision and found it followed the letter of the law and the Director was justified in refusing the applicant’s request to reopen his non‑refoulement protection claim

15.  I refuse leave to apply for judicial review.

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