Shafi Ibrar v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 133/2017

[2019] HKCFI 1083

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 133 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 dated 1 September 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 an 18‑month delay. This application is dated 11 March 2019 and is supported by a short affirmation.

2.The applicant filed a Form 86, a notice of application for leave to apply for judicial review on 11 April 2017.  The intended judicial review was against the decision of the Torture Claims Appeal Board (“the TCAB”) dated 21 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 Pakistan nor did he face a BOR 3 risk, persecution risk or a torture risk.

3.The applicant arrived in Hong Kong illegally on or about 22 March 2014 only to be arrested two to three days later.  He lodged a claim in May 2014 for non-refoulement protection.  I have set out the background to the applicant’s claim in my decision to refuse leave.  My order was dated 1 September 2017 and the applicant’s explanation in his affirmation is that he did not file his notice of appeal in time because he was unaware of the time limit and the law.  To support an appeal, he submits that I dismissed his application on fairly without giving him an opportunity to clarify his situation in Pakistan.  The decision, which I assume is my decision, had heavily relied on the country of origin information provided by the Immigration Department.

4.From the court papers I can see that the applicant filed a total of three Form 86 applications, he applied for leave to apply for judicial review three times, on 10 April 2017, 22 September 2017 and lastly on 28 May 2018.  A Master of the High Court in Chambers refused to allow the applicant to file his third Form 86.  Clearly the second application was made 21 days after I refused leave to apply for judicial review.  In the oral hearing I asked the applicant if he agreed that he had filed the same application three times and he agreed.  He explained that he filed the same application three times because a friend suggested he do it.

5.The delay in filing a notice of appeal is substantial, over 18 months.  His explanation that he was unaware of the law and time limits imposed to appeal is no excuse, ignorance of the law is no excuse.  He filed two further similar applications for leave to apply for judicial review after my decision which I suspect was only to try and extend the process; extend the time he was permitted to remain in Hong Kong.  There was a clear abuse of the court process.

6.In any event, I find there is no merit nor any real prospect of success in the intended appeal.  It is not this court’s duty to reconsider an applicant’s claim but to consider whether the adjudicator of the TCAB made an error of law or whether there is evidence of procedural unfairness or a failure to adhere to a high standard of fairness. The applicant’s only ground is that I did not allow him an opportunity to clarify the situation in Pakistan during the hearing. Even if this was relevant, the applicant had nothing to say other than to rely on his affirmation at the oral hearing of 16 August 2017 before me.

7.The applicant had nothing further to add in the oral hearing except to say that he had never been given a chance.  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 11 March 2019 is dismissed.

The applicant appeared in person.