UDEH DOMINIC ONYEMAECHI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 785/2017

[2018] HKCFI 2279

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 785 OF 2017

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D E C I S I O N

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Introduction

1.  This is an application for leave to appeal against an order of this court dated 27 July 2018, in which the applicant was refused an extension of time to apply for judicial review.

Background

2.  The applicant is a claimant under Article 3 of the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment.  He entered Hong Kong legally on 22 January 2008 but overstayed from 6 February 2008.  He was eventually arrested by the police on 19 October 2009 and, as a result of that arrest, he submitted a non‑refoulement (“NRF”) claim by way of written representation on 23 October 2009.  He was released by the Immigration Department upon recognisance on 15 November 2009.  His NRF claim form was submitted on 10 October 2014.

3.  The applicant attended a screening interview on 23 December 2014.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 5 January 2015 and by Notice of Further Decision (re BOR 2) on 26 October 2016.  The Adjudicator of the TCAB, Mr Yu Cheuk-man, heard him on 12 December 2016.  The Adjudicator refused his appeal on 7 July 2017.

4.  In accordance with Order 53 rule 3, the applicant filed a notice of application by way of Form 86 seeking leave to apply for judicial review of the decisions of both the Director and the Adjudicator.  The Form 86 was dated 19 October 2017.  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 sort 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 7 July 2017.  He was 104 days late.  As such he required the leave of this court for extension of time to apply for judicial review.

5.  In order to obtain that leave, the applicant was required to explain the reasons for his delay.  He did not do so.  He gave no explanation whatsoever.  In the absence of any explanation, it was incumbent upon him to satisfy the court that there was a real prospect of success in his intended leave application and that there would be no prejudice to the putative.  He addressed neither ground.  In essence, there was no basis upon which the court could give leave to extend time, the burden being upon the applicant to satisfy the court of the above.

The current application

6.  The applicant now submits by way of a letter dated 9 September 2018, that the delay was caused as a result of a procedural mix up owing to his lack of knowledge of legal procedure.  He maintains that he had been advised by fellow claimants that he was required first and foremost to apply for legal aid, which he did on 14 August 2018. He intended to apply for judicial review once he was in receipt of legal aid however that took some two months to process and was eventually refused.  At that point he applied for judicial review.

7.  The applicant had three months in which to apply for judicial review of the decisions of the Director and the Adjudicator.  Time ran from the decision of the Adjudicator was dated 7 July 2017.  An applicant who has applied for legal aid is allowed a further 42 days in which to either file his Form 86 or, if filed, to have his application for leave determined.  The date would therefore have been 17 November 2017.  If he had informed the court of his application for legal aid, the court would not have taken the view that the filing of his Form 86 on 19 October 2017 was out of time.  This application therefore turns upon whether the applicant cam show that he did indeed file an application for legal aid for judicial review and that it was refused later refused.  Whilst he purports to append the application to the Director of Legal Aid for assistance, he has not done so.  The document in support merely indicates he made an application but not what the application was for and this court is not in receipt of any notification from the DLA of either an application or its refusal.

Conclusion

8.  In the above circumstances, I am prepared to grant leave to appeal this court’s order to refuse extension of time to apply for judicial review on the condition that the applicant file with the court, documentary confirmation from the Director of Legal Aid of his application for legal aid in respect of his application for judicial review and the date of refusal of that application, within 14 days of today.