Hassan Ali v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1677/2018

[2019] HKCFI 2327

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1677 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 dated 24 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. The applicant had 14 days in which to apply to the Court of Appeal pursuant to Order 53 rule 3(4). He failed to do so. He now requires and seeks leave to extend time to appeal against that order. This application is dated 26 July 2019 and there was a delay of 18 days.

2.The applicant filed a Form 86, a notice of application for leave to apply for judicial review on 20 August 2018. He did not request an oral hearing and I considered his application on the papers. The intended judicial review was against the decision of the Torture Claims Appeal Board (“TCAB”) dated 6 August 2018. The TCAB adjudicator rejected the applicant’s non-refoulement protection claim; she found the applicant untruthful. She did not find him credible and did not believe he was a genuine claimant. In her decision, she set out his claim and evidence in full detail, including his answers to her questions. She gave very full reasons for her conclusions.  She found significant inconsistencies and discrepancies in his claim and evidence therefore, she dismissed his appeal/petition.

3.The applicant’s affirmation to support his judicial review application contained no grounds. He only wrote that his life was still in danger at home. The applicant is a Pakistani national who entered Hong Kong illegally on 29 April 2016 and surrendered on 4 May 2016.

4.In the applicant’s affirmation to support this application he gave his reason for the delay as ignorance of the law and the legal procedure. He states that he had no friends to help him and that is why he is late. During the hearing, he submitted something quite different. He said he had not received my order and only knew that I had dismissed his application to apply for leave to apply for judicial review when he reported to the Immigration Department and they informed him. He then asked a friend to help him file this application for an extension of time to appeal.

5.I asked the applicant when he found that out from an immigration officer and he said the 4 or 5 July. This application came some 21 or 22 days later. He did not explain why there was this delay.

6.At the hearing for this application, the applicant confirmed that his address had not changed and that my order dated 24 June 2019 was posted to his home address. He claims he did not receive it. A notice of hearing for this application for extension of time was posted to the same address and he received that letter dated 19 August 2019.

7.The delay in filing his notice of appeal was just over two weeks and not a substantial delay. However, his explanation that he was unaware of the law and time limits in his affirmation has no merit, ignorance of the law is no excuse. In fact, on his own oral submission, he knew of my decision to refuse his application to apply for judicial review before the deadline to file an appeal expired.

8.In any event, the length of delay is not the only fact I should take into account when considering whether to grant an extension of time to file an appeal. It is not this court’s duty to reconsider an applicant’s claim but to consider whether the adjudicator of the TCAB made any error of law or whether there is evidence of procedural unfairness or a failure to adhere to a high standard of fairness. The applicant submitted no grounds to support that application for a judicial review but I, nonetheless, examined and scrutinised the adjudicator’s decision. I find there is no merit nor any real prospect of success in any intended appeal.

9.Having considered the delay, the lack of reasonable excuse for the delay and the lack of merit in this application, it would not be in the interests of justice to grant an extension of time. The applicant’s summons dated 26 July 2019 is dismissed.

The applicant appeared in person.