HCAL 664/2019
[2024] HKCFI 2755
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 664 OF 2019
_____________
BETWEEN
Mehmood Ansar
Applicant
and
Torture Claims Appeal Board /
Putative
and
Director of Immigration
Putative
Interested Party
_____________
Before:
Deputy High Court Judge K.W. Lung in Court
Date of Hearing:
3 September 2024
Date of Decision:
23 October 2024
_____________
D E C I S I O N
_____________
1. The applicant is an illegal immigrant by staying in Hong Kong without permission and he lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected his application and he appealed to the Torture Claims Appeal Board (“the Board”). The applicant filed his notice of appeal late for 17 days. The Board refused to accept his explanation and refused to extend time for him to file his notice of appeal; in effect, dismissed his appeal.
2. Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.
3. By Order dated 24 May 2022 (“the Order”), this Court granted leave to the applicant to apply for judicial review of the Board’s Decision. In the Order, the Court ordered that the applicant should take out an originating summons within 14 days after the grant of leave in accordance with Order 53, rule 5 of the RHC.
4. In order to ensure that the applicant will not make use of the leave granted to stay in Hong Kong indefinitely by not taking out an application for judicial review of the Board’s Decision, the Court monitored the situation by bringing up the matter from to time for review.
5. As the applicant did not take out the originating summons as ordered, pursuant to Order 1B, rule 1 (3)(b) of the RHC, the Court, by an order dated 8 September 2022, made an “unless order” providing that unless the applicant issues an originating summons for judicial review of the Board’s Decision within 14 days of the service of the Order, the applicant’s application shall be deemed to have been abandoned, the leave granted shall be set aside and the application be dismissed forthwith.
6. The said Order was sent to the applicant’s last known address on 8 September 2022 without being returned by the Post Office. He was deemed to receive the Court’s decision.[1]
7. The time for issuing the originating summons expired on 22 September 2022.
8. By summons filed on 2 July 2024, the applicant applied for extension of time to appeal against the Court’s decision. He is more than one year and nine months out of time.
9. In support of his application, the applicant filed an affirmation, in which he said he did not receive the Court’s decision, he is uneducated and he cannot afford a lawyer to act for him.
10. I gave direction to the applicant that he must apply for legal aid within 7 days after receiving the court’s letter dated 4 July 2024. The Court also fixed a hearing to take place on 3 September 2024 for the applicant to appear before the Court for explaining his delay.
11. However, the applicant was absent at the hearing on 3 September 2024.
Discussion
12. In the circumstances, I refuse to extend time for his appeal. Accordingly, I dismiss his application. The “unless order” shall take effect immediately. The applicant’s application is deemed to have been abandoned, the leave granted on 22 May 2022 for him to apply for judicial review of the Board’s Decision shall be set aside and the application be dismissed forthwith.
(K.W. Lung)
The applicant was unrepresented and did not appear.
[1] Re: Ravinder Singh [2023] HKCA 604 , Hon Poon CJHC and Cheung JA, 28 April 2023
“17. … According to the Court’s record, the Court’s decision was sent to the applicant’s last known address on 31 March 2022 by ordinary post. He was deemed to receive the same on the next following day, not being a specified day such as a Saturday or a general holiday. …”