Board/ Non-refoulement Claims Petition Office

HCAL 368/2017

[2019] HKCFI 1988

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 368 OF 2017

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D E C I S I O N

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1.This is an application for an extension of time to appeal against my decision dated 26 January 2018 refusing this applicant leave to apply for judicial review. An 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. Now, 17 months later requires and seeks leave to extend time to appeal against that order. This application is dated 2 July 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 6 July 2017.  The intended judicial review was against the decision of the Torture Claims Appeal Board (“TCAB”) dated 23 June 2017 rejecting the applicant’s non‑refoulement protection claim.  The adjudicator of the TCAB rejected the applicant’s claim on the basis that he was not credible.  The adjudicator found the applicant’s claim and his supporting documents which were all copies and not originals, unbelievable, implausible and unreliable.  The adjudicator found many inconsistencies and implausibility’s which completely undermined the applicant’s claim; he did not find the applicant a genuine claimant.

3.The applicant has been in Hong Kong since 29 December 2013 when he entered illegally.  He lodged his claim for non-refoulement protection on 1 January 2014.

4.I have set out the background to his claim in the Form CALL‑1.  He appeared in person in that application after his application for legal aid was refused.  My order was dated 26 January 2018 and the applicant’s explanation in his affirmation appears to be that he did not get it in time to file a Notice of Appeal within 14 days.  It is not clear in his affirmation when he received my order and why this application for an extension of time is approximately 17 months after my order.

5.The summons to apply for an extension of time is dated 2 July 2019 and it was set down for hearing on 2 August 2019 at 10 am.  The Notice of Hearing was sent to the applicant’s last known address by registered post.  The applicant was absent on the morning of the hearing.

6.I note in his affirmation that when he knew of my order to refuse leave to apply for judicial review, instead of filing a notice to appeal, he filed another Form 86 applying for leave again.  It appears that was dealt with by Deputy High Court Judge Josiah Lam and refused.  The duplication went undetected unfortunately and wasted time and resources.  He also suggests that he has taken legal advice and has new grounds to apply for leave to apply for judicial review but does not give details of those grounds in his affirmation.

7.The applicant was absent on the date of this hearing and I dismiss the applicant’s summons for extension of time to appeal.  In any event, he has no reasonable explanation for his substantial delay in bringing the intended appeal; the delay of about 17 months.  Upon a reading of his affirmation, there is no merit nor any real prospect of success in the intended appeal.

8.The applicant’s summons dated 2 July 2019 is dismissed.

The applicant, unrepresented, absent.