NAHID MOHAMMAD v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 142/2017

[2019] HKCFI 2851

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 142 OF 2017

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D E C I S I O N

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1.  This is an application for extension of time to appeal against my decision of 25 August 2017. I refused 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. This application is dated 23 October 2019.

2.  The applicant filed a Form 86, a notice of application for leave to apply for judicial review on 18 April 2017.  The intended judicial review was against the decision of the Torture Claims Appeal Board (“TCAB”) dated 7 April 2017 rejecting the applicant’s non‑refoulement protection claim.

3.  That application was set down for hearing on 9 August 2017 at the applicant’s request if leave was not granted on the papers.  The applicant failed to appear and I considered the merits of his application on the papers.

4.  As I have said above, I refused his application on 25 August 2017.  Instead of filing a notice to appeal that decision within 14 days, he filed another Form 86 some months later in these proceedings again for leave to apply for judicial review of the TCAB’s decision based on the identical 8 grounds of procedural impropriety/unfairness and irrationality which he had put before this court in his previous application and which I had found not reasonably arguable for his intended application.  That 2^nd application for leave to apply for judicial review was heard before Deputy High Court Judge Bruno Chan.

5.  That 2^nd application was dismissed on the sole reason that the principle of res judicata applied and that it was an abuse of process by the applicant to try to relitigate his claim again.  Deputy High Court Judge Bruno Chan dismissed that 2^nd application on 28 June 2019.

6.  This applicant has not only filed an application for an extension of time to appeal that decision, at almost the same time, he has filed an application for an extension of time to appeal my decision dated 25 August 2017.

7.  In this application before me he submits that he did not receive my decision but during the oral hearing he clearly contradicts himself.  He admits that he did receive it but received advice not to appeal my decision but to file a second identical application for leave to apply for judicial review instead.

8.  Having heard from the applicant, I find no reasonable explanation for his delay in bringing the intended appeal.  There is no merit nor any real prospect of success in the intended appeal even if I ignore the clear abuse of process by the applicant for trying to relitigate his claim again.  The applicant’s summons dated 23 October 2019 is dismissed.