GASPAR PABLO ALMERANTE v. DIRECTOR OF IMMIGRATION

HCAL 299/2021

[2023] HKCFI 2453

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 299 OF 2021

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 / the Applicant being absent in open court;

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Director of Immigration dated 11 February 2015 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 58-year-old national of the Philippines who on 14 February 2011 raised a non-refoulement claim to the Immigration Department, and after attending a briefing by an immigration officer on 22 December 2014, he was provided with a Notice to Persons Making a Non-refoulement Claim together with a blank Non-refoulement Claim Form (“NCF”) with instructions to complete and return the Form within a required period for the purpose of substantiating his claim, and was also referred to the Duty Lawyer Service (“DLS”) for legal representation for his claim.

2.  By a letter dated 12 January 2015 the Director formally required the Applicant to return his completed NCF on or before 9 February 2015 under Section 37Y (2) of the Immigration Ordinance, Cap 115.

3.  On 9 February 2015 the DLS informed the Director of no instructions to act for the Applicant, and as no completed NCF was returned by the Applicant, by a Notice dated 11 February 2015 the Director informed the Applicant that his non-refoulement claim was treated as having been withdrawn on 10 February 2015 under Section 37ZG (1) of the Immigration Ordinance.

4.  In the said Notice the Applicant was also informed that he may apply to re-open his claim by providing sufficient evidence in writing to satisfy an immigration officer that he had not been able to return the completed NCF as required due to circumstances beyond his control.

5.  No such application to re-open his claim has ever been made to the Director by the Applicant or any appeal/petition lodged by him to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and some 6 years later on 8 March 2021 he a Form 86 for leave to apply for judicial review of the Director’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date.

6.  By then the Applicant was also seriously out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

7.  As the last day of the 3 month-period for him to file his Form 86 fell on 11 May 2015, the Applicant was therefore almost 6 years late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

8.  In the Applicant’s case, a delay of almost 6 years must be considered as extremely substantial and inordinate, for which he failed to provide any explanation in his Form or affirmation or why he had not instead and more appropriately applied to the Director to re-open his claim, and as the record shows that the decision was sent on the same day of 11 February 2015 to his then reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay.

9.  As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forward any proper ground for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in the Director’s decision being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

10.  Having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in it, nor any failure on his part to apply high standards of fairness in his decision to treat the Applicant’s non-refoulement claim as withdrawn due to his failure to return his competed NCF within the period as required.

11.  Moreover, the Applicant has recently filed an affirmation requesting to withdraw his application as it is now safe for him to return to his home country.

12.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.

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