IMRAN ISHTIAQ LONE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 740/2020

[2024] HKCFI 2416

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 740 of 2020

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 oral submissions by the Applicant in open court;

1.  Extension of time to file the application for leave to apply for Judicial Review (“Form 86”) be refused; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 22 April 2020 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 8 November 2018 refusing his application for late filing of the Notice of Appeal / Petition dated 3 February 2017 against the decision of the Director of Immigration in his Notice of Further Decision dated 6 January 2017.

2.  The leave application was filed one seventeen and half months after the date of the Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was made fourteen and half months out of time. Extension of time to file the leave application is required.

3.  In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed in the remaining two. Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors. However, where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung[2], per Litton PJ. The delay in this case is so substantial that leave may be refused on this ground alone without considering the merits of the substantive application, unless the Applicant has a reasonable and credible explanation for the delay.

4.  The Applicant did not give any explanation for the delay in his Form 86 or supporting affirmation. At the hearing, the Court explored the reasons for the delay with him. He said he had never received the Decision from the Board. He was only informed of the Decision when he was sent to Castle Peak Bay Immigration Centre. He said he had changed his address and was living with a friend in Apliu Street in Shamshuipo at the material time. He had not informed the Board of his change of address. He was arrested in connection with unlawful employment. He told the police his new address but never informed the Board.

5.  As was held by the Court of Appeal in Karamjit Singh[3] and Re Hasmi Rizwan Imran[4], it is the applicant’s obligation to keep the court or the authorities informed of his means of contact. If he does not, he has to bear the consequence which his failure brings. The natural and inevitable consequence of his changing his address without informing the Board is that he will not receive correspondence from the Board, including the Decision from the Board. He has no reasonable explanation for the delay. The delay is so inordinate as to be beyond the limit which any court could indulge. There is no need to consider the merits of his substantive application as well as the underlying non-refoulement claim. Accordingly, extension of time to file the leave application and the leave application are refused.

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