HCAL2506/2020 AR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE - LawHero
HCAL2506/2020
Court of First InstanceDeputy High Court Judge To5/2/2024[2024] HKCFI 458
HCAL2506/2020
HCAL 2506/2020
[2024] HKCFI 458
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2506 of 2020
BETWEEN
AR Applicant
and
Torture Claims Appeal Board / Putative
Non-Refoulement Claims Petition Office Respondent
and
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:
consideration of the documents only; or
✓ consideration of the documents and oral submissions by the Applicant in open court;
Order by Deputy High Court Judge To:
1. Leave to amend the Form 86 be granted;
2. Leave to file further affirmation evidence be granted;
3. Extension of time to apply for leave for Judicial Review be refused; and
4. The application for 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 29 December 2020 for leave
to apply for judicial review (the “leave application”) of the decisions of the Torture Claims
Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 2 December 2016
and 17 January 2020 (respectively the “First Decision” and “Second Decision”) affirming
respectively the decision of the Director of Immigration (the “Director”) in his notice of
decision dated 14 November 2014 (the “First Notice”) and his notice of further decision dated
1 February 2017 (the “Second Notice”). At the hearing, leave was granted to the Applicant to
amend his Form 86 and to file further evidence by way of affirmation.
1
2. The leave application was filed almost four years and one month after the date of the First
Decision and almost eleven and half months after the date of the Second 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, extension of time for filing the leave application is required.
Legal principle applicable to extension of time for filing the leave application
3. Application for leave to apply for judicial review should be made promptly and usually
within three months after the date of the decision sought to be reviewed. In AW and Director of
Immigration and William Lam1, 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. Merits is usually a very important factor. Where the delay is not very
substantial, merits is usually the determinant factor. Usually, if the first three factors are resolved
in favour of grant of leave, there is no need to consider the remaining two. But it was also held
by the Court of Final Appeal in Po Fun Chan v Winnie Cheung2 that where an applicant is many
months out of time, leave may be refused “however strong the complaint might otherwise be”.
4. The delay of almost three years and ten months in respect of the First Decision and almost
eight and half months in respect of the Second Decision are very substantial. In the absence of a
reasonable explanation, leave may be refused on this ground of substantial delay alone without
consideration of merits.
The Applicant’s explanation for the delay
5. The Applicant claimed that the delay was caused by a combination of factors including
his change of address, the time taken in processing his legal aid application, the misapprehension
caused by the Director’s invitation for information relating to his claim for non-refoulement
protection under Article 2 of the Bill of Rights (“BOR 2”) and the time taken to obtain legal
advice. The major thrusts of his explanation are, first, his misapprehension that the Director will
re-screen his claim under all four applicable grounds; and second, his misapprehension that the
Director will on his behalf inform the Board of his change of address. The questions are whether
his misapprehensions are reasonably held and credible.
6. As for his other explanations, namely, waiting for the outcome of his legal aid application
which was never approved and his need to obtain legal advice, they carry no weight against a
delay of such magnitude. Furthermore, the Hong Kong courts are very user friendly. There is
nothing to prevent an applicant from acting in person. Particularly for non-refoulement claimants,
the interest of a litigant in person is very well safeguarded by the low standard of proof he has to
discharge, the high standard of fairness the court has to observe and the host country’s duty of
joint endeavour in establishing his claim.
Factual background leading to the delay
7. The First Decision was issued on 2 December 2016. In the same month, the Applicant
promptly applied for legal aid to challenge that decision. He did not make the leave application
1 CACV 63/2015 (unreported) 3 November 2015
2
(2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ
2
at the same time, though. Then, while waiting for the outcome of his legal aid application, he
received the Director’s letter dated 4 January 2017 inviting him
“to submit additional facts which he consider relevant to (his) non-refoulement
claim on all applicable grounds for non-refouleent protection, including any other
absolute and non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”),
including right to life under Article 2 (“BOR 2” and “BOR 2 risk”), in case (he)
have omitted any relevant facts in relation thereto before because of any
misunderstanding on what “all applicable grounds” means.” (the Court’s emphasis
added)
By that invitation, the Applicant claims he was led to the misapprehension that his claim for
protection would be screened afresh on all applicable grounds, including BOR 2 risk ground.
Hence, he saw no need to make the leave application at that stage. His misapprehension is
founded on the phrase “on all applicable grounds” quoted in the above passage.
8. On 1 February 2017, the Director issued his Second Notice refusing the Applicant’s
claim under BOR 2 risk ground. The Applicant appealed the Second Notice. Before the Board
issued its Second Decision, the Applicant changed his address on 1 November 2019. He
informed the Director of his new address, but not the Board. He claims he did not inform the
Board of his change of address due to his honest though mistaken understanding that the
Immigration Department would relay the same to the Board. As a result, he did not receive the
Second Decision. He only learned about the Second Decision when he reported his recognisance
to the Immigration Department on or around 17 August 2020.
9. On 24 August 2020, the Applicant attended the secretariat of the Board and requested for
a copy of the Second Decision. On 16 September 2020, he retained Messrs Daly & Associates
(“D&A”) to act for him. D&A immediately made a data access request to the Immigration
Department for all necessary documents for the intended leave application. D&A obtained an
anonymity order on 24 December 2020 before filing the leave application on 29 December 2020.
Credibility and reasonableness of the explanation in respect of the First Decision
10. The Applicant did not produce a copy of the Director’s letter dated 4 January 2017 to
support his claimed misapprehension. He relies on paragraph 1 of the Second Notice quoted
above. It appeared that the Director did invite the Applicant to submit additional facts which the
Applicant considered relevant to his non-refoulement claim on “all applicable grounds” which
he thought relevant and which he may have omitted due to misunderstanding of what applicable
grounds means. There is no representation, whether express or implied, that the Director was
setting aside his First Notice and to re-assess the Applicant’s claim on all applicable grounds
afresh. By no reading of that passage, assuming it was quoted word for word from the Director’s
letter of 4 January 2017, could a reasonable reader in the shoes of the Applicant with his
disadvantage in his English language capability it to convey the misapprehension claimed by the
Applicant. The Director invited submission of facts relevant to all applicable grounds. He never
made any express or implied representation that the facts submitted were for the purpose of re-
assessing the Applicant’s claim afresh on all applicable grounds.
11. Furthermore, it is important to note the last sentence of that paragraph, which reads:
“You have been duly notified that a further written decision of your non-
refoulement claim on any other applicable grounds, taking into account any new
facts submitted and all facts submitted previously under the unified screening
mechanism (“USM”), will be made if you have not produced any relevant facts to
us by the end of 18 January 2017.” (the Court’s emphasis added)
3
That last sentence indicates that the Applicant had been informed by a previous correspondence,
presumably the letter of 4 January 2017 which he did not produce, that the exercise was related
to assessment of his claim under another applicable ground not previously considered, ie BOR 2
risk ground. It is clear that the Director’s intention was to assess the Applicant’s claim on “any
other applicable grounds”, ie the BOR 2 risk ground.
12. As for the phrase “on all applicable grounds” heavily relied on by the Applicant, that
phrase was understandably used by the Director to invite the Applicant to submit practically
anything which he may consider relevant to his claim for non-refoulement protection so that
nothing would have been missed out and no stone would have been left unturned. The Director
was doing so in the interest of the Applicant by casting a very wide net to ensure the above
purpose will be achieved. Having regard to the factual matrix, it is clear that it never was the
Director’s intention to set aside his First Notice issued just 33 days ago and to re-assess the
Applicant’s claim on all applicable grounds afresh. By no reading of the passage relied on by
the Applicant could it give rise in the mind of a reasonable reader the misapprehension allegedly
entertained by the Applicant. This Court does not accept the alleged misapprehension is honestly
held by the Applicant. And even if it were, this Court finds an explanation founded on such a
misapprehension is not reasonable.
13. This Court therefore comes to the conclusion that the Applicant has no reasonable
explanation for the very substantial delay of almost three years and ten months in applying for
judicial review of the First Decision. Following the decision in Po Fun Chan v Winnie Cheung,
extension of time for filing the leave application in respect of the First Decision is refused without
the need to consider merits of the intended application, prejudice and question of general public
importance.
Credibility and reasonableness of the explanation in respect of the Second Decision
14. As for his misapprehension that the Director will on his behalf inform the Board of his
change of address, it is very far-fetched and a very wishful thinking on his part. In Karamji
Singh3, the Court of Appeal held:
“As we have said before, it is common sense that if a litigant or a claimant does not
notify the authority (be it the Immigration Department, the board, or the court) in
his change of address, there would be delay in communication. If he does not do
so, he should arrange for timely transmission of mail from his old address to his
new address. It is the duty of a litigant/claimant to give the authority an address to
which correspondence or notice can come to his attention in timely manner. The
consequence of any delay occasioned by the ineffectiveness of such an address
would fall on the shoulder of the litigant/claimant, see: Islam Raja Rais v Director
of Immigration HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims
Appeal Board [2018] HKCA 82; and Re Saqlain Muhammad [2018] HKCA 346.”
15. The Applicant filed his notice of appeal with the Board on 6 February 2017. On his own
admission, he moved to a new address on 1 November 2019. He claims he had informed the
Immigration Department of his change of address but did not inform the Board under the
misapprehension that the Immigration Department would do so on his behalf. It was only when
he reported his recognisance that he came to know that his appeal had been dismissed. It is not
his case that he had requested the Immigration Department to inform the Board of his change of
address or that the Immigration Department had undertaken to do so on his behalf. He was
appealing to the Board against the decision of the Director. He filed the notice of appeal with the
3
CACV 78/2018; [2018] HKCA 460
4
Board at a different address from the Immigration Department. He ought to know that the
Immigration Department and the Board are two different entities. There is no basis for his belief.
16. To the Court’s knowledge, non-refoulement claimants are usually released from
immigration detention on their own recognizance and have to report to the Immigration
Department every now and then, usually once a year. His so called “informed the Immigration
Department” is most probably what he did in the course of reporting his recognisance. It is
doubtful if his misapprehension is actually held, let alone honestly.
17. There is no need for this Court to make such a finding. Even accepting that his
misapprehension were honestly held by him, his explanation is not a reasonable one. It is not
reasonable for him to expect the Immigration Department would inform the Board about his
change of address in a matter which is personal to him. The interval between the date of the
Second Decision and the date of filing of the leave application is almost eleven and half months.
The Applicant had no reasonable explanation for the delay of seven months and seven days
from 17 January 2020, the date of the Second Decision, to 24 August 2020 when he took the first
step in prosecuting the leave application. He gave an account for a period of four months
and five days from 24 August 2020 when he requested for a copy of the Second Decision to
29 December 2020 when D&A filed the leave application on his behalf. Accepting three months
as a reasonable time taken by D&A to take instructions, obtain documents, consider and give
legal advice and file the leave application, a period of one month and five days was not accounted
for. In overall terms, he was unable to give a reasonable explanation for a delay of almost eight
and half months. That delay is the consequence of his failure to inform the Board of his change
of address. On the authority of Karamji Singh, he has to bear the consequence of any delay
occasioned by the ineffectiveness of his outdated address. Following Po Fun Chan v Winnie
Cheung, the delay is so substantial that leave to apply may be refused by reason of delay alone.
18. Furthermore, his leave application in respect of the Second Decision has absolutely
no prospect of success. He has not even advanced any ground of review against the Second
Decision. His grounds of review are all directed at the First Decision. This is understandable
because BOR 2 protects against arbitrary deprivation of life by the government of the home state
and there is no evidence that the Applicant is subject to a death sentence or at risk of genocide in
his home country.
19. For these reasons, extension of time for filing the leave application in respect of the
Second Decision is refused without need to consider prejudice and general public importance.
Conclusion
20. For the above reasons, extension of time for filing the leave application and the leave
application are refused.
Dated 6th day of February 2024.
(Allen LEE)
For Registrar, High Court
5
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 granted,
the Applicant or his
solicitors must:
a) serve on the respondent Sent to the Applicant Sent to the Putative Respondent /
and such interested on 6/2/2024 the Putative Respondent’s solicitors
parties as may be / such Putative Interested Parties as
directed by the Court the AR may be directed by the Court / the
order granting leave and Putative Interested Parties’
any directions given Applicant’s ref. no: solicitors on 6/2/2024
within 14 days after the 7442-AMR/JC/CC2
leave was granted(Order Torture Claims Appeal Board /
53, rule 4A); Non-Refoulement Claims
Petition Office
b) issue the originating Putative Respondent’s ref. no.:
summons within 14 days USM 462/14/11/78/P133,
after the grant of leave BOR 108/17/2/17/P37
and serve it in
accordance with Order Director of Immigration
53, rule 5; and Putative Interested Party’s ref. no.:
QA T/C 662/14, RBCZ
c) supply to every other 9001463/16/16 (Formerly RBCZ
party copies of every 1716/09)
affidavit which the
Applicant proposes to use Department of Justice,
at the hearing, including Senior Assistant Law Office
the affidavit in support of (Civil Law)
the application for leave (Civil Litigation Unit 2)
(Order 53, rule 6(5)).
Form CALL-1
6
AR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE
HCAL 2506/2020
[2024] HKCFI 458
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2506 of 2020
BETWEEN
AR Applicant
and
Torture Claims Appeal Board / Putative
Non-Refoulement Claims Petition Office Respondent
and
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:
consideration of the documents only; or
✓ consideration of the documents and oral submissions by the Applicant in open court;
Order by Deputy High Court Judge To:
1. Leave to amend the Form 86 be granted;
2. Leave to file further affirmation evidence be granted;
3. Extension of time to apply for leave for Judicial Review be refused; and
4. The application for 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 29 December 2020 for leave
to apply for judicial review (the “leave application”) of the decisions of the Torture Claims
Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 2 December 2016
and 17 January 2020 (respectively the “First Decision” and “Second Decision”) affirming
respectively the decision of the Director of Immigration (the “Director”) in his notice of
decision dated 14 November 2014 (the “First Notice”) and his notice of further decision dated
1 February 2017 (the “Second Notice”). At the hearing, leave was granted to the Applicant to
amend his Form 86 and to file further evidence by way of affirmation.
1
2. The leave application was filed almost four years and one month after the date of the First
Decision and almost eleven and half months after the date of the Second 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, extension of time for filing the leave application is required.
Legal principle applicable to extension of time for filing the leave application
3. Application for leave to apply for judicial review should be made promptly and usually
within three months after the date of the decision sought to be reviewed. In AW and Director of
Immigration and William Lam1, 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. Merits is usually a very important factor. Where the delay is not very
substantial, merits is usually the determinant factor. Usually, if the first three factors are resolved
in favour of grant of leave, there is no need to consider the remaining two. But it was also held
by the Court of Final Appeal in Po Fun Chan v Winnie Cheung2 that where an applicant is many
months out of time, leave may be refused “however strong the complaint might otherwise be”.
4. The delay of almost three years and ten months in respect of the First Decision and almost
eight and half months in respect of the Second Decision are very substantial. In the absence of a
reasonable explanation, leave may be refused on this ground of substantial delay alone without
consideration of merits.
The Applicant’s explanation for the delay
5. The Applicant claimed that the delay was caused by a combination of factors including
his change of address, the time taken in processing his legal aid application, the misapprehension
caused by the Director’s invitation for information relating to his claim for non-refoulement
protection under Article 2 of the Bill of Rights (“BOR 2”) and the time taken to obtain legal
advice. The major thrusts of his explanation are, first, his misapprehension that the Director will
re-screen his claim under all four applicable grounds; and second, his misapprehension that the
Director will on his behalf inform the Board of his change of address. The questions are whether
his misapprehensions are reasonably held and credible.
6. As for his other explanations, namely, waiting for the outcome of his legal aid application
which was never approved and his need to obtain legal advice, they carry no weight against a
delay of such magnitude. Furthermore, the Hong Kong courts are very user friendly. There is
nothing to prevent an applicant from acting in person. Particularly for non-refoulement claimants,
the interest of a litigant in person is very well safeguarded by the low standard of proof he has to
discharge, the high standard of fairness the court has to observe and the host country’s duty of
joint endeavour in establishing his claim.
Factual background leading to the delay
7. The First Decision was issued on 2 December 2016. In the same month, the Applicant
promptly applied for legal aid to challenge that decision. He did not make the leave application
1 CACV 63/2015 (unreported) 3 November 2015
2
(2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ
2
at the same time, though. Then, while waiting for the outcome of his legal aid application, he
received the Director’s letter dated 4 January 2017 inviting him
“to submit additional facts which he consider relevant to (his) non-refoulement
claim on all applicable grounds for non-refouleent protection, including any other
absolute and non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”),
including right to life under Article 2 (“BOR 2” and “BOR 2 risk”), in case (he)
have omitted any relevant facts in relation thereto before because of any
misunderstanding on what “all applicable grounds” means.” (the Court’s emphasis
added)
By that invitation, the Applicant claims he was led to the misapprehension that his claim for
protection would be screened afresh on all applicable grounds, including BOR 2 risk ground.
Hence, he saw no need to make the leave application at that stage. His misapprehension is
founded on the phrase “on all applicable grounds” quoted in the above passage.
8. On 1 February 2017, the Director issued his Second Notice refusing the Applicant’s
claim under BOR 2 risk ground. The Applicant appealed the Second Notice. Before the Board
issued its Second Decision, the Applicant changed his address on 1 November 2019. He
informed the Director of his new address, but not the Board. He claims he did not inform the
Board of his change of address due to his honest though mistaken understanding that the
Immigration Department would relay the same to the Board. As a result, he did not receive the
Second Decision. He only learned about the Second Decision when he reported his recognisance
to the Immigration Department on or around 17 August 2020.
9. On 24 August 2020, the Applicant attended the secretariat of the Board and requested for
a copy of the Second Decision. On 16 September 2020, he retained Messrs Daly & Associates
(“D&A”) to act for him. D&A immediately made a data access request to the Immigration
Department for all necessary documents for the intended leave application. D&A obtained an
anonymity order on 24 December 2020 before filing the leave application on 29 December 2020.
Credibility and reasonableness of the explanation in respect of the First Decision
10. The Applicant did not produce a copy of the Director’s letter dated 4 January 2017 to
support his claimed misapprehension. He relies on paragraph 1 of the Second Notice quoted
above. It appeared that the Director did invite the Applicant to submit additional facts which the
Applicant considered relevant to his non-refoulement claim on “all applicable grounds” which
he thought relevant and which he may have omitted due to misunderstanding of what applicable
grounds means. There is no representation, whether express or implied, that the Director was
setting aside his First Notice and to re-assess the Applicant’s claim on all applicable grounds
afresh. By no reading of that passage, assuming it was quoted word for word from the Director’s
letter of 4 January 2017, could a reasonable reader in the shoes of the Applicant with his
disadvantage in his English language capability it to convey the misapprehension claimed by the
Applicant. The Director invited submission of facts relevant to all applicable grounds. He never
made any express or implied representation that the facts submitted were for the purpose of re-
assessing the Applicant’s claim afresh on all applicable grounds.
11. Furthermore, it is important to note the last sentence of that paragraph, which reads:
“You have been duly notified that a further written decision of your non-
refoulement claim on any other applicable grounds, taking into account any new
facts submitted and all facts submitted previously under the unified screening
mechanism (“USM”), will be made if you have not produced any relevant facts to
us by the end of 18 January 2017.” (the Court’s emphasis added)
3
That last sentence indicates that the Applicant had been informed by a previous correspondence,
presumably the letter of 4 January 2017 which he did not produce, that the exercise was related
to assessment of his claim under another applicable ground not previously considered, ie BOR 2
risk ground. It is clear that the Director’s intention was to assess the Applicant’s claim on “any
other applicable grounds”, ie the BOR 2 risk ground.
12. As for the phrase “on all applicable grounds” heavily relied on by the Applicant, that
phrase was understandably used by the Director to invite the Applicant to submit practically
anything which he may consider relevant to his claim for non-refoulement protection so that
nothing would have been missed out and no stone would have been left unturned. The Director
was doing so in the interest of the Applicant by casting a very wide net to ensure the above
purpose will be achieved. Having regard to the factual matrix, it is clear that it never was the
Director’s intention to set aside his First Notice issued just 33 days ago and to re-assess the
Applicant’s claim on all applicable grounds afresh. By no reading of the passage relied on by
the Applicant could it give rise in the mind of a reasonable reader the misapprehension allegedly
entertained by the Applicant. This Court does not accept the alleged misapprehension is honestly
held by the Applicant. And even if it were, this Court finds an explanation founded on such a
misapprehension is not reasonable.
13. This Court therefore comes to the conclusion that the Applicant has no reasonable
explanation for the very substantial delay of almost three years and ten months in applying for
judicial review of the First Decision. Following the decision in Po Fun Chan v Winnie Cheung,
extension of time for filing the leave application in respect of the First Decision is refused without
the need to consider merits of the intended application, prejudice and question of general public
importance.
Credibility and reasonableness of the explanation in respect of the Second Decision
14. As for his misapprehension that the Director will on his behalf inform the Board of his
change of address, it is very far-fetched and a very wishful thinking on his part. In Karamji
Singh3, the Court of Appeal held:
“As we have said before, it is common sense that if a litigant or a claimant does not
notify the authority (be it the Immigration Department, the board, or the court) in
his change of address, there would be delay in communication. If he does not do
so, he should arrange for timely transmission of mail from his old address to his
new address. It is the duty of a litigant/claimant to give the authority an address to
which correspondence or notice can come to his attention in timely manner. The
consequence of any delay occasioned by the ineffectiveness of such an address
would fall on the shoulder of the litigant/claimant, see: Islam Raja Rais v Director
of Immigration HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims
Appeal Board [2018] HKCA 82; and Re Saqlain Muhammad [2018] HKCA 346.”
15. The Applicant filed his notice of appeal with the Board on 6 February 2017. On his own
admission, he moved to a new address on 1 November 2019. He claims he had informed the
Immigration Department of his change of address but did not inform the Board under the
misapprehension that the Immigration Department would do so on his behalf. It was only when
he reported his recognisance that he came to know that his appeal had been dismissed. It is not
his case that he had requested the Immigration Department to inform the Board of his change of
address or that the Immigration Department had undertaken to do so on his behalf. He was
appealing to the Board against the decision of the Director. He filed the notice of appeal with the
3
CACV 78/2018; [2018] HKCA 460
4
Board at a different address from the Immigration Department. He ought to know that the
Immigration Department and the Board are two different entities. There is no basis for his belief.
16. To the Court’s knowledge, non-refoulement claimants are usually released from
immigration detention on their own recognizance and have to report to the Immigration
Department every now and then, usually once a year. His so called “informed the Immigration
Department” is most probably what he did in the course of reporting his recognisance. It is
doubtful if his misapprehension is actually held, let alone honestly.
17. There is no need for this Court to make such a finding. Even accepting that his
misapprehension were honestly held by him, his explanation is not a reasonable one. It is not
reasonable for him to expect the Immigration Department would inform the Board about his
change of address in a matter which is personal to him. The interval between the date of the
Second Decision and the date of filing of the leave application is almost eleven and half months.
The Applicant had no reasonable explanation for the delay of seven months and seven days
from 17 January 2020, the date of the Second Decision, to 24 August 2020 when he took the first
step in prosecuting the leave application. He gave an account for a period of four months
and five days from 24 August 2020 when he requested for a copy of the Second Decision to
29 December 2020 when D&A filed the leave application on his behalf. Accepting three months
as a reasonable time taken by D&A to take instructions, obtain documents, consider and give
legal advice and file the leave application, a period of one month and five days was not accounted
for. In overall terms, he was unable to give a reasonable explanation for a delay of almost eight
and half months. That delay is the consequence of his failure to inform the Board of his change
of address. On the authority of Karamji Singh, he has to bear the consequence of any delay
occasioned by the ineffectiveness of his outdated address. Following Po Fun Chan v Winnie
Cheung, the delay is so substantial that leave to apply may be refused by reason of delay alone.
18. Furthermore, his leave application in respect of the Second Decision has absolutely
no prospect of success. He has not even advanced any ground of review against the Second
Decision. His grounds of review are all directed at the First Decision. This is understandable
because BOR 2 protects against arbitrary deprivation of life by the government of the home state
and there is no evidence that the Applicant is subject to a death sentence or at risk of genocide in
his home country.
19. For these reasons, extension of time for filing the leave application in respect of the
Second Decision is refused without need to consider prejudice and general public importance.
Conclusion
20. For the above reasons, extension of time for filing the leave application and the leave
application are refused.
Dated 6th day of February 2024.
(Allen LEE)
For Registrar, High Court
5
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 granted,
the Applicant or his
solicitors must:
a) serve on the respondent Sent to the Applicant Sent to the Putative Respondent /
and such interested on 6/2/2024 the Putative Respondent’s solicitors
parties as may be / such Putative Interested Parties as
directed by the Court the AR may be directed by the Court / the
order granting leave and Putative Interested Parties’
any directions given Applicant’s ref. no: solicitors on 6/2/2024
within 14 days after the 7442-AMR/JC/CC2
leave was granted(Order Torture Claims Appeal Board /
53, rule 4A); Non-Refoulement Claims
Petition Office
b) issue the originating Putative Respondent’s ref. no.:
summons within 14 days USM 462/14/11/78/P133,
after the grant of leave BOR 108/17/2/17/P37
and serve it in
accordance with Order Director of Immigration
53, rule 5; and Putative Interested Party’s ref. no.:
QA T/C 662/14, RBCZ
c) supply to every other 9001463/16/16 (Formerly RBCZ
party copies of every 1716/09)
affidavit which the
Applicant proposes to use Department of Justice,
at the hearing, including Senior Assistant Law Office
the affidavit in support of (Civil Law)
the application for leave (Civil Litigation Unit 2)
(Order 53, rule 6(5)).
Form CALL-1
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