RE AMIR HOSSEN

HCAL 14/2015

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 14 OF 2015

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J U D G M E N T
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1.  This is an application for leave to apply for judicial review against the decision of the Member of the Torture Claims Appeal Board and the Adjudicator of the Non-refoulement Claims Petition Office (“the Adjudicator”) dated 28 January 2015, refusing the Applicant’s late filing of the appeal.

2.  The Applicant requested and I therefore conduct an oral hearing for this leave application.

3.  The facts of this case have been set out in the decision of the Adjudicator dated 15 January 2015 and I do not want to repeat the same here.

4.  The decision to reject the Applicant’s non-refoulement claim on all applicable grounds was made on 28 August 2014.

5.  The Notice of Decision was delivered by hand to the office of the Duty Lawyer Service on 28 August 2014.  By virtue of section 37ZV(2)(b) of the Immigration Ordinance, Cap 115 (“the Ordinance”) and para 8.7 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme (“the Petition Guide”), the Notice of Decision is conclusively presumed to have been given to the Applicant on the second working day after it was delivered to the office of the Duty Lawyer Service (i.e. 30 August 2014).

6.  By virtue of section 37ZS of the Ordinance and para 8 of the Petition Guide, a person who wishes to appeal or petition (hereinafter referred to as “appeal”) against a decision of an Immigration Officer must file with the Torture Claims Appeal Board or Non-refoulement Claims Petition Office (“the Board”) a notice of appeal within 14 days after notice of the decision is given to him unless late filing of the notice is allowed by the Board.

7.  The Applicant should therefore have filed a Notice of Appeal with the Board on or before 13 September 2014.

8.  Although dated 9 September 2014, the Applicant’s Notice of Appeal was only filed with the Board on 15 September 2014.  It was therefore out of time.

9.  By virtue of section 37ZT of the Ordinance and para 9 of the Petition Guide, if a notice of appeal is filed out of time, it must include an application for late filing of the notice which must in turn include a statement of the reasons for failing to file the notice within the prescribed period.

10.  In deciding whether to allow late filing of the notice of appeal, the Board, by virtue of section 37ZT(2) of the Ordinance and para 9.2 of the Petition Guide, may only take into account:

(a) the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence relied on in support of those reasons; and

(b) any other relevant matters of fact within the knowledge of the Board.

11.  In this case, the Applicant’s Notice of Appeal included no application for late filing and therefore no statement of reasons for failing to file the notice within the prescribed period.

12.  Despite that omission, the Board, by letter of 9 December 2014 sent to the Applicant by post at Pik Uk prison (“the Letter”), drew to his attention that he had not made any application for late filing of his Notice of Appeal and informed him that if he did not do so within two weeks of the date of the Letter, the Board would dismiss his Notice of Appeal as having been made out of time.  The Applicant signed an acknowledgement of the receipt of the Letter on 12 December 2014 but has filed no application for late filing of the Notice.

13.  In this leave application, the Applicant claims that he was detained in prison at the relevant time.  He had provided the requisite grounds of appeal and intention to appeal to the Welfare Officer inside the prison, and the delay in the filing of the Notice of Appeal was not his fault.  Despite that, the Applicant still had to comply with the statutory requirements in section 37ZT in filing an application for late filing of the notice which must also include a statement of the reasons for failing to file the notice within the prescribed period.

14.  In view of the failure on the part of the Applicant to make such application, the Adjudicator was right in refusing the Applicant’s late filing of the Notice of Appeal.  As the Applicant’s application for judicial review cannot possibly succeed, I refuse the leave application.