Arshad Muhammad v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1661/2018

[2019] HKCFI 1990

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1661 OF 2018

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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 17 June 2019 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 that order. This application is dated 5 July 2019 and there is an affirmation.

2.The applicant had filed a Form 86, a notice of application for leave to apply for judicial review on 20 August 2018. The intended judicial review was against the decision of the Torture Claims Appeal Board (“TCAB”) dated 14 August 2018 rejecting the applicant’s BOR 2 claim only.  The applicant’s non‑refoulement protection claim had been dismissed by the TCAB earlier on 24 March 2017 but did not include a consideration of his BOR 2 claim.  This was later dismissed by the adjudicator on 14 August 2018 without an additional hearing.  The adjudicator found there to be no need for further questions after an earlier oral hearing.  The applicant had not submitted any additional facts.  The adjudicator took into account what grounds were submitted by the applicant in his notice of appeal/petition.

3.The adjudicator found that the nature and scope of the non‑refoulement protection afforded by BOR 2 had no relevance to the non‑refoulement claim as presented by the applicant.  He found the applicant could not succeed in establishing a case under BOR 2 and confirmed the decision of the Director.  Upon a reading of the papers it is clear it was never the applicant’s case that he would be arbitrarily deprived of life in Pakistan, have the death penalty imposed on him or otherwise be deprived of his rights under BOR 2.

4.I have set out the background to his claim in the Form CALL‑1.  In fact, the applicant did not request an oral hearing when he filed a Notice of Application for leave to apply for judicial review. I considered his application on the papers.  He had filed an affirmation but it contained no grounds.  In view of the lack of grounds, a letter was sent to the applicant dated 15 January 2019 to which he replied that he had no further submissions to make to support this application.

5.My order was dated 17 June 2019 and the applicant gives no explanation in his affirmation for why he did not file a Notice of Appeal on time.  I note he was only five days late but he did confirm during the oral hearing of 2 August 2019 that he did receive my Form CALL‑1 within the 14‑day period.  He said that he asked a friend for advice and was told to ask for a hearing as he had not had an oral hearing to consider his application for leave to apply for judicial review.  As I have said above, there was no request for an oral hearing in that application. Essentially, his only reason for a failure to file a Notice of Appeal on time was ignorance of the law.

6.His explanation that he was unaware of his rights to apply to the Court of Appeal is no excuse, ignorance of the law is no excuse.  There is no reasonable explanation for his delay in bringing the intended appeal.

7.In any event, there is no merit nor any real prospect of success in the intended appeal.  I gave him an opportunity to say more during the oral hearing but he was unable to do so; he only submitted that he could not leave Hong Kong because his life was in danger in Pakistan.

8.Having considered the reason for his delay, his lack of merit in the application, I find it would not be in the interests of justice to grant an extension of time.

9.The applicant’s summons dated 5 July 2019 is dismissed.

The applicant appeared in person.