Rahman Tanjil v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 127/2017

[2019] HKCFI 1082

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 127 OF 2017

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Before: Deputy High Court Judge Woodcock in Chambers

Date of Hearing: 18 April 2019

Date of Decision: 29 May 2019

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D E C I S I O N

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1.This is an application for extension of time to appeal against my decision of 25 August 2017 refusing this applicant leave to apply for judicial review. The applicant may appeal as of right but has to observe the time limits to appeal an interlocutory order. Pursuant to Order 53 rule 3(4), the applicant had 14 days in which to apply to the Court of Appeal. He failed to do so. He now requires and seeks leave to extend time to appeal against that order. There has been a 19‑month delay. This application is dated 13 March 2019 and is supported by an affirmation.

2.The applicant filed a Form 86, a notice of application for leave to apply for judicial review on 10 April 2017.  The intended judicial review was against the decision of the Torture Claims Appeal Board (“the TCAB”) dated 30 March 2017.  The TCAB adjudicator rejected the applicant’s non‑refoulement protection claim.  He found the applicant did not face a real risk of torture if he returned to Bangladesh nor did he face a BOR 3 risk, persecution risk or a torture risk.

3.The applicant last entered Hong Kong illegally on 30 November 2013.  He was arrested by the police on 15 January 2014 and then lodged a non-refoulement protection claim on 18 January 2014.

4.I have set out the background to the applicant’s claim in my decision to refuse leave.  My order was dated 25 August 2017 and the applicant’s explanation in his affirmation was that he did not file his notice of appeal in time because he did not receive my decision and order by post.  He was then later arrested and detained.  In the affirmation there are no grounds of appeal set out.

5.In the oral hearing the applicant agreed that it was his own fault he did not receive my order of 25 August 2017 by post because he went into hiding from August 2017 to February 2019 when he was arrested.  He went into hiding to evade detention by the Immigration Department because that department was sending non-refoulement protection claimants back home and he did not want to return home.  He has no reasonable excuse for failing to file a notice of appeal on time.

6.The applicant has delayed this notice of appeal by about 19 months, a substantial delay.  He admits it was entirely his own fault that he did not receive my order and the blame lies at his own door.  I find no reasonable explosion for the delay in bringing the intended appeal.

7.In any event and in addition, I find there is no merit nor any real prospect of success in the intended appeal.  There are no grounds of review nor any complaint of my decision to refuse leave in this application in his affirmation.  The applicant had nothing to add in the oral hearing except to say that the TCAB did not properly investigate his claim.

8.Having considered the length of delay and the lack of merit in this application, it would not be in the interests of justice to grant an extension of time.  The applicant’s summons dated 13 March 2019 is dismissed.

The applicant appeared in person.