GARDIOLA JEANE LAGAC v. TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 952/2017

[2018] HKCFI 2217

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 952 of 2017

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 the Applicant being present/absent in open court;

Extension of time for leave to apply for judicial review be refused.

Observations for the Applicant:

Procedural history

1.  The Applicant entered Hong Kong legally on 18 January 2007 and was allowed to remain upon a Foreign Domestic Worker visa until 12 November 2007.  The Applicant’s contract of employment was terminated on 27 October 2007 and she was required to leave by 10 November.  On two occasions, the Applicant applied for an extension of stay which was refused.  She subsequently overstayed.  On 29 March 2015, the Applicant was arrested for an offence of theft.  On 9 June 2015, the Applicant was arrested for overstaying.  She has been on court bail since that date.

2.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 19 June 2015.  As a result, on 2 October 2015, the Applicant received a Notice to Persons Making a Non Refoulement Claim and was provided with a blank Non‑Refoulement Claim Form (“NCF”).  The Applicant had the benefit of a Tagalog interpreter when the onerous conditions of the process were explained to her.  This included being told that she had 28 days in which to submit the NCF.  She was thereafter represented by the Duty Lawyer Service (“DLS’).  The date for the submission of the NCF was 20 November 2015.  This was reiterated to the DLS by way of letters dated 23 October 2015 and 13 November 2015.  On 19 November 2015, the DLS informed the Director of Immigration (“the Director”) that they had received no instructions from the Applicant.  The Director attempted to contact her on the same day using the contact number the Applicant had given but the Applicant could not be reached.  As a result, the NCF, not having been submitted by 20 November, was deemed withdrawn and the Applicant was notified of that withdrawal by letter dated 24 November 2015.  Included in that letter were instructions as to what was required in order to re-open the claim.

3.  On 25 January 2016, DLS wrote to the Director seeking to re-open the claim.  The reasons for the original non submission of the NCF were given at that time.  They included lack of funds to attend the first interview with the DLS and being unwell so that the Applicant could not attend the second interview.  This submission was considered on the papers.  There was no medical evidence in support.  The Applicant’s request to re-open her claim was denied on 27 January 2016.  The Applicant had not been able to show that her failure to submit the NCF on time was due to circumstances beyond her control.  The Applicant was informed that she had 14 days to appeal that decision.

4.  On 11 February 2016, the Applicant lodged a Notice of Appeal within time.  Her appeal was considered on the papers by the adjudicator, Mr Wesley Wong, who refused it on 12 May 2017, giving reasons.

5.  The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 24 November 2017, which was out of time.  She did not request an oral hearing. The issue of extension of time to apply for judicial review of the decisions of both the Director and the Adjudicator, was therefore considered as a preliminary point on the papers prior to any consideration of her application for leave to apply for judicial review of the Decisions of both the Director and Adjudicator denying her the opportunity to re-open her claim.

Form 86 out of time

6.  In accordance with Order 53 rule 3, the Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review.  This was dated 24 November 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 12 May 2017 and expired on 11 August 2017.  The Notice of Decision was sent to the Applicant’s registered address; the same address she relies upon for these proceedings.  The Applicant has submitted no explanation for her delay and has not sought leave for an extension of time.  I have never the less considered the principles[1] applicable to granting such an extension if an application had been made and those are:

(1)  the length of delay;

(2)  the reasons for delay;

(3)  the prospects of success in the intended appeal; and

(4)  the prejudice to the putative respondent if extension of time were granted.

7.  In this case the Applicant was late by 105 days and has not offered any explanation for this delay.  This is a surprise, as the Applicant knew that she had to provide reasons for failure to submit her original NCF and was provided with a notice which indicated what she was required to submit for an application for judicial review.  In view of the fact that no reasons for her late filing have been given, she must satisfy the court that there are real prospects of success in her intended leave application and that there will be no prejudice to the putative respondent before an extension of time will be granted.  There is no reason at all before the Court as to why an extension of time for leave to apply for judicial review should be given.  There were no grounds provided for leave to judicially review the decision of the Director and Adjudicator either. The Applicant’s claim is unsubstantiated.  There is no basis upon which the court could begin to exercise its discretion.

8.  This application is dismissed as being out of time.

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