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HCAL 1899/2018
[2020] HKCFI 3100
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1899 of 2018
BETWEEN
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Mohammad Shahid |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative
Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge P. Li:
1. Extension of time for application for leave to apply for Judicial Review be refused; and
2. Application for leave to apply for Judicial Review be dismissed.
Observations for the Applicant:
1. The applicant applied for torture claim on 30 May 2006 and 29 April 2013. He was served the necessary documents including the SCF[1] at Tai Lam Correctional Institution on 23 March 2017. He had assistance from the DLS. The Director later requested through the DLS that he should return the completed SCF on or before 11 May 2017.
2. On 10 May 2017, the DLS informed the Director that they were unable to contact the applicant. They had no instruction to act for him. In fact, the Director was unable to contact the applicant by phone on the same day. He had not reported to the Immigration Department either.
3. The Director treated his claim to be withdrawn on 17 May 2017. A letter was sent to the last known address of the applicant. It was mentioned in the letter that the applicant might apply to re-open his claim provided he could satisfy the Director that he failed to return the SCF due to circumstances beyond his control.
4. On 7 October 2017, the applicant requested to re-open his claim. On the request of the Director, he further explained by a letter dated 12 October 2017 that his life would be in danger if he returned to India. He could not obtain the evidence as he was detained in CIC. He would provide the evidence as soon as possible if he was granted bail.[2]
5. The Director was not satisfied with the applicant’s explanation and refused to re-open the applicant’s claim on 18 October 2017.
The Decision of the Director
6. The applicant filed a notice of appeal on 23 October 2017. There was no hearing held.
7. The adjudicator set out the background of this case and considered all relevant material.
8. The adjudicator agreed with the Director. The applicant failed to provide sufficient evidence as to his failure to complete a SCF in accordance with sections 37Y (2) and 37ZG (3) of the Immigration Ordinance. The adjudicator dismissed the appeal on 2 February 2018.
Judicial Review
9. The applicant filed the leave application on 11 September 2018. His address recorded in the Form 86 was that of the CIC. He wrote at the back of the Form 86 that “my problem still not finished in my country India. Mean my life is in danger in my country India…” He indicated in his affirmation that he was not satisfied with the decision of the TCAB.
10. In processing the leave application, this court tried to contact the applicant through the CIC by a letter dated 27 December 2019. We were informed that the applicant had already been released from the CIC on 26 September 2018. Upon our request for the address of the applicant, the Director informed this court the updated address and phone number of the applicant. According to the Director, the applicant had not reported to the Immigration Department since October 2019.[3]
11. The applicant was about 4 months out of time in making an application for leave. He should have made an application for extension of time to file the leave application in the Form 86. However, he did not make such application and did not give any explanation for the delay.
12. In considering whether there is good reason for the delay, I have to consider 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]
13. There was a delay of about 4 months. He filed the Form 86 on 11 September 2018 while in CIC, he was granted recognizance on 26 September 2018 according to our record. He had not reported to the Immigration Department since October 2019[5]. He made no attempt to explain the delay.
14. Secondly, the applicant failed to complete the SCF in May 2017. The duty lawyer lost contact with him in the same month. He did not report to the Immigration Department during that time. Presumably, he was on recognizance at that time.[6] He filed a notice of appeal to TCAB on 23 October 2017. Before the adjudicator decided his appeal on 2 February 2018, he did not make any attempt to file the SCF or any evidence whatsoever in support of his claim. He did not attempt to contact the TCAB either. This was inconsistent with his claim that he was detained in CIC and could not provide the necessary evidence for completing the SCF.
15. The background of this case demonstrated that the applicant played the system. He had no intention to deal with his claim expediently. The adjudicator was correct not to hold an oral hearing.
16. In my judgment, there is no merit in his application. There is no good reason to extend the time for filing the leave application.
Conclusion
17. Having considered the above, I agree with the adjudicator and the Director. There is no error of law and procedure. The decisions are reasonable. His case is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.
Dated the 18th day of December 2020.
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(Mike Mak) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant on 18 December 2020
Mohammad Shahid
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 18 December 2020
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:USM 8899/17/10/229/IN1684
Director of Immigration
Putative Interested Party’s ref. no.:
L/M (17280) in ImmD RA 7/37/C (Formerly RBCZ/2000384/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] “Notice to Persons Making Non-refoulement claim” and a written request to submit within 28 days were also served.
[2] Decision of the Director dated 18 October 2017, pages 1-2.
[3] Letter dated 9 January 2020.
[4] [2020] HKCFA 22, para. 37.
[5] Letter from the Director to this court dated 9 January 2020.
[6] Decision of the Director dated 18 October 2017, page 2, §2. The date should be 10 May 2017 instead of 10 May 2015.
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