RE BODIAR MOLLA

HCAL 169/2012

[2019] HKCFI 2270

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 169 OF 2012

___________________________

___________________________

___________________________________

R E A S O N S   F O R   D E C I S I O N

___________________________________

1.  This was a Summons by the Applicant dated 26 July 2019 for extension of time to appeal to the Court of Appeal against the Decision of this court dated 7 March 2013 (set out in a Form CALL-1) by which his application for leave to apply for judicial review against the rejection of his torture claim by the Director of Immigration and by the Adjudicator (Torture Petitions) was refused. 

2.  The Applicant had failed to appear to prosecute this application and it was dismissed.  As indicated at the hearing, the material before the court did not disclose any merit in this application. These are the reasons for that view.

3.  The Summons was supported by an Affirmation of the Applicant of the same date.  The only ground put forward in those documents was that the Applicant did not receive a copy of the Decision. 

4.  The Applicant’s leave application was dated 7 December 2012.  It was supported by 2 Affirmations of the Applicant of the same date.  In both Affirmations, the Applicant’s stated address was one at Ma Tau Wai Road (“Address”). 

5.  The Leave Application was followed shortly by an application for legal aid by the Applicant (the Notification of Application for Legal Aid was dated 10 December 2012).  The legal aid application was refused on about 18 February 2013.  The court then proceeded to consider the Leave Application on paper only. 

6.  It appeared from the Form CALL-1 that a copy of it was sent to the Applicant at the Address on 7 March 2013.  On the next day, a copy of the Order (dated 8 March 2013) made pursuant to the Decision was sent to the Applicant at the same Address by registered post.  The delivery was apparently unsuccessful in that it was, according to a chop on the envelope, “unclaimed”.  However, it was recorded in a note written on the envelope: “redirect by ordinary mail on 11 April 2013”.  More likely than not, a copy of the Order was sent again by ordinary mail to the Applicant at the same Address on that later date.

7.  It could be seen from the court file that on 21 June 2019 the Applicant had conducted a search of that file.

8.  Although the records suggested that it was possible that the Applicant had not received a copy of the Decision, the matter could not rest there. 

9.  Firstly, assuming in the Applicant’s favour that he did not receive a copy of the Decision, he was clearly alive to having made the Leave Application, and that his legal aid application was refused.  It must follow that the court would proceed to consider the Leave Application as it did.  It was nothing short of incredible that the Applicant did not take any step over a period in excess of 6 years to find out what had happened to his application.

10.  Secondly, if the Applicant had moved away from the Address after having filed the Leave Application, it was clearly his responsibility to inform the court.  It was again incredible that for a period in excess of 6 years the Applicant had failed to inform the court of his whereabouts (assuming that he had moved away) or to make enquiry about the progress of his application. 

11.  Thirdly, the situation must be assessed in light of the fact that in the Leave Application it was alleged by the Applicant that he feared for his life and had to escape to Hong Kong.  It was not therefore an application which could be made and forgotten.

12.  I regret to say that the Applicant had not begun to address these matters in the present application. 

13.  Fourthly, it might be the case in view of the inordinate lapse of time since the Decision that the Applicant had gone through the Unified Screening Mechanism which was introduced after the Decision.  If so, it was very difficult to see the relevance of the proposed appeal against the Decision. 

14.  Finally, for completion, there was nothing before the court which might diminish the validity of the reasons set out in the Decision.