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HCAL 646/2020
[2021] HKCFI 87
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 646 of 2020
BETWEEN
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Ahmad Ershad alias Mohammad Irshad |
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:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
BACKGROUND
1. The applicant came to Hong Kong on 29/7/2009. He was allowed to stay for 14 days. He overstayed until arrested by the police on 2/9/2009. He filed a torture claim on 4/9/2009. He was released on recognizance since 11/9/2009.
2. His torture claim was refused by the Director on 23/10/2013. He then raised a CIDTP claim on 29/11/2013. He withdrew the CIDTP claim subsequently and was removed from Hong Kong on 9/2/2014.
3. He came back to Hong Kong on 20/11/2016. He was permitted to stay until 4/12/2016. He overstayed and was arrested by the police on 15/12/2016.
4. He lodged the non-refoulement claim on 15/2/2017. He filed the NCF and attended the screening interview on 22/6/2018. His claim was rejected by the Director on 26/6/2018. His appeal was dismissed by the TCAB on 19/10/2018.
5. He filed a leave application for judicial review of the decisions of the Director and the TCAB on 23/10/2018. This was the case HCAL 2393/2018.
6. Deputy Judge Lung refused leave for judicial review on 20/1/2020.
7. He filed another leave application for judicial review of the decision of Deputy Judge Lung on 15/4/2020. This was the case HCAL 646/2020.
Judicial Review
8. It is obvious that the applicant had adopted the wrong procedure. To challenge the decision of Deputy Judge Lung, he should have appealed against the decision instead of filing another leave application for judicial review.
9. The applicant should have lodged an appeal within 14 days after the decision of Deputy Judge Lung. For that procedure, the applicant is substantially out of time as of to date.
10. In the circumstances, the applicant should issue a summons to apply for extension of time to file a notice of appeal against the decision of Deputy Judge Lung in HCAL 2393/2018.
11. The leave application in HCAL 646/2020 is therefore dismissed.
Dated the 13th day of January 2021.
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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 13 January 2021
Ahmad Ershad alias Mohammad Irshad
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 13 January 2021
Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 12409/18/7/159/IN2478
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1954/18 (Formerly RBCZ/10471/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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