RE MOHAMMAD SHAHID

HCAL 1899/2018

[2021] HKCFI 2248

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1899 OF 2018

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D E C I S I O N

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1.  The applicant applied for torture claim on 30/5/2006 and 29/4/2013. At the commencement of the screening process, he was requested to fill in the SCF [1] and returned it by 11/5/2017. At that time, he was remanded at Tai Lam Correctional Institution. He was assisted by the DLS.[2]

2.  On 10/5/2017, the DLS informed the Director that they could not contact the applicant.  They had no further instruction to act for him.  Meanwhile, the Director was unable to contact the applicant.  He had not reported to the Director.  Presumably, the applicant was no longer detained.

3.  On 17/5/2017, the Director informed the applicant in writing that his claim was treated as withdrawn as he failed to complete the SCF.  The letter was sent to the last known address of the applicant.

4.  On 7/10/2017, the applicant applied to re-open his application.  He explained that his life was in danger.  He was detained in CIC [3]. He would provide relevant evidence if bail was allowed.

5.  On 18/10/2017, the Director refused to re-open his claim.

6.  On 23/10/2017, the applicant appealed to the TCAB.  On 2/2/2018, the adjudicator concluded that the applicant had failed to provide sufficient evidence in writing according to s.37Y (2) and s.37ZG (3).  The adjudicator agreed with the Director.  The adjudicator was not satisfied that the applicant failed to return the SCF due to circumstances beyond the latter’s control.

7.  On 11/9/2018, the applicant applied for leave for judicial review of the decision of the TCAB.  He was about 4 months out of time.  According to the Form 86, he was detained in CIC then.  He indicated his life was still in danger in India.

8.  On 27/12/2019, this court wrote to the applicant in writing through the CIC for processing the leave application.  It transpired that the applicant had already been released from the CIC since 26/9/2018.  According to the Director, the applicant had not reported to the Director since October 2019.

9.  On 9/1/2020, this court wrote to the applicant at his last known address. There was no response.  There was no return of mail.

10.  This court considered the leave application on paper.  The applicant was out of time for about 4 months.  He should have applied for an extension of time to file the leave application.  He had not made such application and had not explained the delay.

11.  In considering whether there was good reason for the delay, this court had considered the length of the delay, the reasons for the delay, the merits of the application and the prejudice to the putative respondent if extension was granted. [4]

12.  The applicant failed to return a completed SCF in May 2017.  He did not contact the DLS.  He did not report to the Director.  He had made no attempt to file any evidence in support of his claim or contact the TCAB in relation to the appeal.  During the time around May 2017, he should have been granted recognizance. He was also granted bail since 26/9/2018.  All this contradicted his assertion that he could not provide the necessary evidence as he was detained in CIC.

13.  The course of events showed that the applicant had no intention to deal with his claim expeditiously.  The adjudicator was correct not to hold an oral hearing.  This court agreed with the decision of the adjudicator.

14.  On 18/12/2020, this court concluded that there was no good reason for the delay and refused to extend time for filing the leave application.  There is no merit in the intended judicial review.  Leave was refused.

15.  On 8/2/2021, the applicant filed a summons to appeal against the decision of this court.  He was about 5 weeks out of time.  He did not explain the delay.  He indicated that he was not satisfied with the decision of this court.

16.  In considering whether to extend time for appeal, this court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the merits of the intended judicial review; (4) prejudice to the respondent.[5]

17.  The applicant was out of time for about 5 weeks.  It was substantial delay.  He had not explained the delay.

18.  As set out above, the applicant had not filed any evidence in support of his claim.  He was trying to play the system.  He had not processed his claim expeditiously.  In my judgment, there is no merit in the intended judicial review.  I refuse the application for extension of time to appeal.