HUSSAIN AKBAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1310/2022

[2025] HKCFI 5705

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1310 of 2022

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

Following:

	consideration of documents only;        or
	consideration of 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 Applicants’ application by Form 86 filed on 22 November 2022 for leave to apply for judicial review (the “leave application”) against a decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”).  He annexed a copy of that decision, which is dated 31 March 2021 (the “Decision”).  At the hearing, he confirmed that the decision in respect of which relief is sought is the Board’s decision dated 31 March 2021 (the “Decision”). 

2.  The leave application was filed almost 21 months 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 lodged almost 18 months 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 with 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.  At the hearing, after the legal principles applicable to judicial review had been explained to him, he confirmed he had no complaint about errors of law in the Decision, procedural unfairness or irrationality in the Decision and would leave it to the Court to scrutinize the Decision for those vitiating elements. 

5.  When asked about the reason for his delay in making the leave application, he said he had applied for legal aid.  He said he had sent the documents to the Legal Aid Department two weeks ago and is waiting for the result of his application.  But he could not even produce the card issued by the department to acknowledge his application.  As of today, the Court has not received any memorandum from the Legal Aid Department about his legal aid application.  At most what he had done was to make enquiries about legal assistance.  A formal legal aid application has not been made. 

6.  When asked again for the reason of his delay, he replied saying that he was not educated, did not know the procedure and did not know he had to apply within the time limit.  Ignorance of the law is no excuse.  The procedural time limits are meant to be observed.  The delay of almost 18 months is well beyond the many months’ limit permissible by Po Fun Chan v Winnie Cheung. 

7.  In addition, the Applicant confirmed he had no explanation for the delay.  He simply sat on the matter.  He did nothing about the Decision.  If a non-refoulement claimant is genuinely in fear of being harmed or killed upon his being returned to his home country, he would have taken some steps or made some enquiries as to how to go about challenging the decision which will result in his imminent return.  The inference to be drawn from his inordinate delay is that he has no genuine fear returning to his home country.  His delay is so inordinate that his leave application may be refused without considering merits of the substantive application.

Conclusion

8.  For the above reasons, extension of time to apply for judicial review and leave to apply for judicial review are refused.

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