Haque Azizul v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 442/2017

[2019] HKCFI 1989

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 442 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 of 23 February 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. He failed to do so and now requires and seeks leave to extend time to appeal against that order about 16 months later. This application is dated 8 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 25 July 2017. The intended judicial review was against the decision of the Torture Claims Appeal Board (“TCAB”) dated 19 July 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 nor a genuine claimant.  He found the applicant was not a witness of truth, not credible and his evidence was, I quote, “incoherent to such an extent that I was initially concerned that I may have prepared the papers for a different appellant hearing.”  The adjudicator concluded that the applicant’s account of alleged events to support his claim was a fabrication.

3.The applicant has been in Hong Kong since 9 March 2016 when he arrived illegally by boat.  He lodged his claim for non‑refoulement protection on 13 March 2016.  I have set out the background to his claim in the Form CALL‑1.  My order was dated 23 February 2018 and the applicant’s explanation in his affirmation for not filing a notice of appeal within 14 days was that he did not get my order “on time”.

4.In his affirmation he admits that he filed another Form 86 for leave to apply for judicial review instead of a Notice of Appeal.  This duplication was not discovered and his 2^nd application for leave was rejected by the Deputy High Court Judge Josiah Lam.  This application to buy time to remain in Hong Kong is a waste of resources and costs.  During the hearing for the summons, the applicant admitted that he duplicated the application for leave to apply for judicial review instead of appealing my order in a timely manner.

5.In his affirmation, he submits that after taking legal advice he has a new ground to support an application for leave to apply for judicial review but does not give details.  During the oral hearing he could not shed any light on this new ground which in any event is not relevant at this stage.

Conclusion

6.The applicant gives no evidence as to when he did receive my order.  During the hearing he confirmed that he made a conscious decision not to appeal my decision but decided to make the same application again, a duplicate application.  This means this application is extremely delayed.  The applicant is about 16 months’ late, a substantial delay. I find no reasonable explanation for his delay in bringing the intended appeal.

7.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, no grounds of review nor any complaint of my decision to refuse leave.  I had given him the opportunity to explain further during the oral hearing but he only submitted that he could not leave Hong Kong.

8.Having considered the length of delay, his subsequent actions in filing a duplicate Form 86 application and the lack of merit in his application, it would not be in the interests of justice to grant an extension of time.

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

The applicant appeared in person.