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HCAL 54/2018
[2020] HKCFI 1931
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 54 OF 2018
BETWEEN
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Ramadhan Bakari Rashid |
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:
Leave to apply for judicial review be refused.
Observations for the Applicant:
Procedural history
1. The applicant entered Hong Kong lawfully on 2 February 2012, but thereafter overstayed. He was arrested by the police on 7 August 2012 and submitted a non-refoulement claim by way of written representation on 3 March 2014. He was released upon recognisance on 16 April 2014. His non-refoulement claim form was submitted on 20 April 2016.
2. The applicant attended a screening interview on 16 June 2016. The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision on 24 June 2016 and by Notice of Further Decision (re BOR 2) on 14 July 2017. The adjudicator of the Torture Claims Appeal Board, Ms Kay Ransome (“the Adjudicator”), heard him on 29 August 2017 and considered his appeal on all applicable grounds. The Adjudicator refused his appeal on 27 September 2017.
Background to claim
3. The applicant was born and raised in Dar-es-Salaam, Tanzania. From 2008, the applicant ran a garment trading business. In 2011, the applicant borrowed money from man called Juma. The loan was repayable within three months. He did not repay the loan as the money he used to buy stock did not turn a profit and the remainder was stolen. The applicant was in China at the time of the theft. He intended to return to Tanzania via Hong Kong but whilst in Hong Kong he received death threats from Juma and decided not to return.
Form 86 out of time
4. 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 11 January 2018. 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 sought 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 27 September 2017 and expired on 27 December 2017. The decision was sent to the applicant’s registered address. 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[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 and administration of justice if extension of time were granted.
5. In this case the applicant was late by 15 days and has not offered any explanation for this delay. In view of that, he must satisfy the court that there is a reasonable prospect 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. The Director considered his case in some detail and gave him more than one opportunity to make his case. The Adjudicator placed the applicant’s case at its highest, but nevertheless went on to confirm the Director’s decisions. 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 factual basis for his claim is extremely weak. I can see no merit in it whatsoever. There were no grounds provided for leave to judicially review the decisions of the Director and Adjudicator. The applicant simply asks for a re-hearing. The applicant’s claim as explained above is not reasonably arguable. I can find no error of law or procedure in the decisions made and he does not have a realistic prospect of success.
6. This application is refused.
Dated the 7th day of August 2020.
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(Marcus Wong) |
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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 refused, and the Applicant wishes to appeal this decision, the Applicant or his solicitors must: |
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a) file any notice of appeal within 14 days from the date of judgment or order; and
b) serve any notice of appeal on the respondent and such interested parties as may be directed by the Court; and
c) within 7 days after the date on which service of the notice of appeal was effective, the appellant must lodge with the Registrar:
(i) a copy of the sealed judgment or order and copy of the reasoned decision; and
(ii) two copies of the notice of appeal, one of which shall be endorsed with the amount of the fee paid and the other indorsed with a certificate of the date of service of the notice (Order 59, rule 5(1)); and
d) the Registrar shall then cause the appeal to be set down in the list of appeals and within 4 days thereafter the appellant must give notice to that effect to all parties on whom the notice of appeal was served (Order 59, rule 5(3)); and
e) comply with Order 59 of the Rules of the High Court to properly progress the appeal. |
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Sent to the Applicant
on 7 August 2020
Ramadhan Bakari Rashid
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 7 August 2020
Torture Claims Appeal Board /
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 4082/16/7/52/TA7
Department of Justice
for Director of Immigration
Putative Interested Party’s ref. no.:
RBCZ/9002528/17
(formerly RBCZ/3000279/14) |
Form CALL-1
[1] Re Thomas Lai [2014] 6 HKC 1; AW v Director of Immigration [2016] 2 HKC 393; H v Director of Immigration [2020] HKCFA 22
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