DELA CRUZ EDUARDO JR. GASILLA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1276/2024

[2025] HKCFI 756

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1276 of 2024

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

Following:

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

1.      Extension of time to file the application for leave to apply for Judicial Review (“Form 86”) 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 5 August 2024 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 24 March 2022 (the “Decision”) dismissing his appeal against the decision of the Director in his Notice of Decision dated 20 May 2021 (the “Notice”), refusing his application for non-refoulement protection.

2.  The leave application was filed twenty-eight months and twelve days after the date of the Decision sought to be reviewed.  Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was made twenty-five months and twelve days out of time. Extension of time to file the leave application is required.

3.  In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed in the remaining two. Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors. However, where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung[2], per Litton PJ. The delay in this case is so substantial that leave may be refused on this ground alone without considering the merits of the substantive application, unless the Applicant has a reasonable and credible explanation for the delay.

4.  Despite clear indication in the Form 86 that an applicant is required to state his grounds for application and reasons for delay, if any, the Applicant provided neither.  At the first hearing of his leave application, the Court explored the reason for the delay with him.  He said he had applied for judicial review in 2023, but as he was not given a case number, the immigration officer told him to apply again in 2024. 

5.  At the second hearing, he produced the original Form 86 with a stamp showing he had paid the court fee of $1,045 on 7 June 2023.   But that copy of Form 86 does not have a bar code showing its case number.  It also does not contain the description of the decision in respect of which relief is sought.  It is an incomplete form.  What probably happened was that he did attempt to apply in 2023, but after paying the court fee he took the stamped Form 86 with him and left, without filing it. Giving him the benefit of the doubt, he was asked to give an account of what he had done during the 15 months from 24 March 2022 to 7 June 2023 in prosecuting his leave application in 2023.

6.  The Applicant said he applied for judicial review in June 2023 about a year after he had received the Decision.  There was nothing to suggest non-delivery or late delivery of the Decision.  Hence, he was about nine months late.  The delay is very substantial. 

7.  His explanation for the delay is that he had no money to pay the court fee and he did not know he had to apply for judicial review until after he was told by an immigration officer when he reported his recognisance in February or March 2023. 

8.  The Court did not consider that a reasonable explanation.  If he was concerned about the danger he would face returning to his home country, he would have taken some steps to overturn the Decision, even though he did not know what the proper procedures were.  The least he could do was to go to the secretariat of the Board and make enquiries or to seek advice from the immigration officer when he next reported his recognisance.  He said at the time he had to report once every four weeks.  Between March 2022 and February 2023, he had to report 13 times.  But he did nothing.  It was only the immigration officer who told him that he had to apply for judicial review in the High Court.  

9.  The Applicant has no satisfactory explanation for the very substantial delay.  His conduct evinced a lack of intention to prosecute his leave application.  It resulted in delay in the processing of his leave application and his non-refoulement process. The delay is so inordinate as to be beyond the limit which any court could indulge. His conduct is a clear abuse of legal process.  For these reasons, there is no need to consider the merits of his leave application.  Extension of time to file the leave application is refused.  His leave application is dismissed for want of prosecution.

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