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HCAL 925/2017
[2018] HKCFI 2149
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 925 of 2017
BETWEEN
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Munatsi Kingsley |
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 The Honourable Mrs Justice Campbell-Moffat:
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 23 June 2008 and was arrested by the police for overstaying on 12 April 2014. He was transferred to the Immigration Department on 15 April. He was convicted of overstaying on 26 April 2014 and sentenced to six months’ imprisonment. He was discharged on 11 August 2014 and submitted a non-refoulement (“NRF”) claim by way of written representation on 12 August. He was released upon recognisance on 7 September 2014 and his NRF claim form was submitted on 12 January 2016.
2. The Applicant attended a screening interview on 18 March 2016. The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 26 April 2016 and by Notice of Further Decision (re BOR 2) on 27 April 2017. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 4 May 2016. The adjudicator of the TCAB, Ms Mary Yuen (“the Adjudicator”), heard his appeal on 10 May 2017. The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 7 July 2017.
Form 86 out of time
3. 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 21 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 7 July 2017. The Notice of Decision was sent to the Applicant’s registered address; the same address he relies upon for these proceedings. The Applicant has submitted no explanation for his delay and has not sought leave for an extension of time. I have nevertheless considered the principles applicable to granting such an extension if an application had been made and those are
a) the length of delay;
b) the reasons for delay;
c) the prospects of success in the intended appeal; and
d) the prejudice to the putative respondent if extension of time were granted: Chee Fei Ming v Director of Food and Environmental Hygiene [2015] 4 HKC 134; Wong Yuk Man v Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015).
4. In this case the Applicant was late by 45 days and has not offered any explanation for this delay. In view of that he must satisfy the Court that there are real prospects of success in his 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. The Applicant’s claim as explained above is not reasonably arguable and does not have a realistic prospect of success.
5. Accordingly, this application is dismissed as being out of time.
Dated 29th day of November 2018.
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(Ms Queenie Mak)
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
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Notes for the Applicant:
If leave has been granted, the Applicant or his 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 29/11/2018
Munatsi Kingsley
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 29/11/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 3605/16/5/23/BWA1
Director of Immigration
Putative Interested Party’s ref. no.:
RBCZ 9001427/17 (formerly RBCZ 2626/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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If extension of time has not been granted, the Applicant or his legal representative must:
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(a) first apply to this court within 14 days of the date of this order by way of summons for leave to appeal,
(b) When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal,
(c) The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper,
(d) If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions.
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Form CALL-1
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