Naseem Mohammad Ishaq v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 479/2017

[2019] HKCFI 1364

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 479 OF 2017

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Before: Deputy High Court Judge Woodcock in Chambers

Date of Hearing: 17 May 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 23 March 2018 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 to appeal that decision. He failed to do so. He now requires and seeks leave to extend time to appeal against my order. This application is dated 13 March 2019 and he has supported it with an affirmation

2.The applicant had filed a Form 86, a notice of application for leave to apply for judicial review on 3 August 2017. The intended judicial review was against the decision of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“TCAB”). That decision was dated 12 May 2017.  The TCAB rejected the applicant’s non‑refoulement protection claim.  That petition/appeal was dealt with by way of a paper review, there was no oral hearing.  The TCAB decided a hearing which is not mandatory; it could be dispensed with if the necessary standard of fairness is maintained.  The adjudicator of the TCAB rejected the applicant’s appeal/petition on the basis that he had not made out his case under either a persecution risk, a torture risk, nor risk of torture or CIDTP under Article 3 of Section 8 of the Bill of Rights Ordinance.

3.The Director sent the applicant a Notice of Further Decision on 23 June 2017.  The Director reviewed the applicant’s claim again to consider whether he was at risk; a personal and real risk of his absolute and non‑derogable rights under Article 2 of the Hong Kong Bill of Rights Ordinance being violated.  That means there was no risk to his right to life pursuant to Article 2.  Since this decision came after the TCAB decision of 12 May 2017, the applicant was advised to lodge a further petition/appeal to the TCAB if he challenged this rejection.  He was notified in that Notice of Further Decision where and by when he had to file such a petition/appeal.  It would appear from the file that he did not appeal that decision.

4.The applicant has been in Hong Kong since January 2016 when he entered illegally by boat.  I have set out the background to his claim in the Form CALL‑1 in HCAL 479/2017.  The applicant was given a hearing date in December 2017 and appeared in person.

5.My order refusing the applicant’s application for leave to apply for judicial review was dated 23 March 2018 and the applicant now says that he did not apply to the Court of Appeal to appeal my order in time because “I don’t know English and I need to find friend to help me to translate”.  This is his only explanation or ground in his affirmation which he confirmed at the hearing.

6.During this hearing, the applicant confirmed he did receive my order in a timely fashion but submitted that he was mentally unstable and needed to look for someone to help him deal with his appeal.  He did not know the legal procedure to appeal.  He said without a lawyer he could not handle these matters.  He had problems back home in Pakistan; he suffers from depression and mental tension.

7.He admitted that he filed this application in March 2019 because the Immigration Department was now putting pressure on him to return to Pakistan as he had exhausted all legal avenues to claim non‑refoulement protection.

8.He did write a letter to this court which I take to be in support of his affirmation but it is a repetition of his claim.  It ends with a request for a lawyer to handle his legal proceedings.

9.I gave the applicant an opportunity during the hearing to set out what grounds of appeal he would rely on and what merits he considered his appeal would have but he was unable to answer this question except to say that he continues to have problems at home.

Conclusion

10.The applicant confirmed that he did receive my order and he was very late in appealing his decision because he did not read English nor had any assistance from a friend or a lawyer.  The applicant was essentially 12 months late in requesting an extension of time to appeal. His explanation for the delay is not reasonable and ignorance of the law is no excuse.  I find no reasonable explanation for his delay in bringing the intended appeal.  It appears that he only filed this application because the Immigration Department are preparing him to return to Pakistan.

11.In any event, I find there is no merit nor any real prospect of success in the intended appeal.  There are essentially in his affirmation and oral submissions, no grounds of review nor any complaint of my decision to refuse leave.  I have given him the opportunity to say more but he was unable to do so; he only submits his problems still exist in Pakistan.

12.Having considered the length of delay, his lack of a reasonable excuse for the delay and the lack of merit in his application, it would not be in the interests of justice to grant an extension of time.

13.The applicant’s summons dated 13 March 2019 is dismissed.

The applicant appeared in person.