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HCAL609/2017
[2018] HKCFI 568
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 609 of 2017
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BETWEEN |
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Lama Mingmar |
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 Deputy High Court Judge Woodcock:
Leave to apply for Judicial Review refused.
Observations for the Applicant (Order by Deputy High Court Judge Woodcock):
1. The applicant is a Nepalese national who arrived in Hong Kong on 11 May 2014 and overstayed illegally only to be arrested on 19 May 2014 by the police. He lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 12 May 2015 and 1 November 2016. He lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which conducted an oral hearing on 11 November 2016 and dismissed his appeal on 28 April 2017.
2. The applicant filed a notice application for leave to apply for judicial review on 8 September 2017. This application is filed six weeks late. It should have been filed on or by 28 July 2017, within three months of the date of the TCAB’s decision, pursuant to Order 53, Rule 4. If there is a delay in filing this application, then full reasons should be given in the application form and they were not. No reasons were given in the supporting affirmation either. The delay was not acknowledged or explained at all. At the oral hearing, the applicant admitted he did not know it was late.
3. The applicant requested an oral hearing if leave was not granted on the papers, the hearing date was set down for 2 March 2018. The applicant appeared in person because his application for legal aid had been refused. He was requested to give reasons for the delay in the application. As he admitted that he did not know his application was late, he could not think of a reason for its delay. When asked how this application came about, he explained that his friend told him about it so he did it so that the case will be prolonged. When I asked what the case will prolong and did he mean his time in Hong Kong, he said “something like that” and “if I stayed here it will be better”.
4. 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 to the public administration and whether the application raised any questions of general public importance.
5. The delay is not insignificant, there is no explanation for the delay and there is certainly no good reason for extending time. Even the merits of the substantive application, after perusal of the papers and hearing the applicant, are weak. Moreover, the application does not raise any questions of general public importance. The extension of time sought is an abuse of process and ought to be refused. Delay alone is enough to dispose of this application.
6. The applicant only put forward two grounds in his affirmation and the first is a nonstarter. He suggests that he answered all the adjudicator’s questions honestly and he is aggravated that hiscredibility was questioned. According to the adjudicator’s decision, the applicant elected not to give evidence or answer questions. In addition, the adjudicator made no finding as to credibility.
7. The second ground related to the adjudicator relying on Country of Origin information that was hearsay, out of date and not officially recognised. None of those accusations are true and if this ground was considered, it would have no merit.
8. As I have said above, the extension of time sought to file this application is refused because the application itself is an abuse of process. His actual reason for filing this application is an abuse, he admits filing it in an attempt to prolong his time in Hong Kong. The applicant has no reasons to put forward for the delay of six weeks. The two grounds he did put forward had no merits nor did they raise any questions of general public importance.
9. The application for leave to apply for judicial review is dismissed.
Dated 23rd day of March 2018.
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(Alan Ngan) |
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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 leave has been granted, the Applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A);
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Sent to the Applicant
on 23/3/2018
Lama Mingmar
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 23/3/2018
Torture Claims Appeal Board /
Non-Refoulement Claims
Petition Office
Putative Respondent’s ref. no.:
USM 1583/15/5/115/N167
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 340/15 & RBCZ/9000011/16 (formerly RBCZ/1859/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
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| c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Form CALL-1
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