Zeeshan Khan v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1667/2018

[2019] HKCFI 1991

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1667 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 19 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 17 August 2018. The intended judicial review was against the decision of the Torture Claims Appeal Board (“TCAB”) dated 20 June 2018 rejecting the applicant’s non‑refinement protection claim.

3.The adjudicator of the TCAB rejected the applicant’s claim on the basis that he was not credible; she rejected it on the basis of credibility.  She gave full reasons for her finding that he was not credible.  She went further and concluded that even if he were telling the truth, the applicant had failed to establish he would face a real risk of torture, or CIDTP under BOR 3, a real risk of being deprived of his right to life under BOR 2, a real risk of persecution and a real risk of torture as defined in section 37U of the Immigration Ordinance.

4.The applicant had entered Hong Kong illegally on 29 January 2016.  He lodged his claim for non‑refoulement protection on 31 January 2016.  I have set out the background to his claim in the Form CALL‑1.  In his application for leave to apply for judicial review, he did not request an oral hearing and I considered his application on the papers.

5.My order was dated 17 June 2019. In the applicant’s explanation in his affirmation was that he did not receive it until almost 14 days later.  This meant he did not have enough time to appeal my decision.  In addition, he has taken legal advice and understands that there is a good ground of appeal that was not considered when he applied for leave to apply for judicial review.  He believes that this new ground justifies this court exercising his discretion to extend time to appeal.

6.However, during the oral hearing, he submitted that he did not receive my order dated 17 June 2019 at all.  He received a letter from the Immigration Department to tell him that his application for leave to apply for judicial review had been refused.  When asked why his affirmation said otherwise, he attributed that to a lawyer drafting his affirmation without proper instructions.

7.When asked to expand on his new ground of appeal for consideration, he repeated the facts of his claim.  When I asked him if he was submitting the TCAB did not properly consider his claim, he said that the TCAB said he could relocate internally but he could not afford to pay the rent if he moved to Islamabad.  He said he had no money to relocate or settle anywhere else in Pakistan.

8.Although the delay is not substantial, the applicant gives contradictory evidence in his affirmation and during the oral hearing.  I am not satisfied he has a reasonable explanation for his delay in bringing the intended appeal.

9.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 have given him the opportunity to say more but he was unable to do so.

10.Having considered the lack of reasonable explanation for his delay in filing a notice of appeal and the lack of merit in his application, it would not be in the interests of justice to grant an extension of time.

11.The applicant’s summons dated 19 July 2019 is dismissed.

The applicant appeared in person.