RANA SOHEL v. TORTURE CLAIMS APPEAL BOARD/ NON REFOULEMENT CLAIMS PETITION OFFICE

HCAL 126/2017

[2019] HKCFI 23

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 126 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 refusing this applicant leave to apply for judicial review. The applicant may appeal as of right but has to observe the time limit to appeal an interlocutory order. Pursuant to Order 53 rule 3(4) of the Rules of the High Court (Cap.4A), 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 8 October 2018 and he has supported it with an affirmation.

2.  The applicant filed a Form 86, a notice of application for leave to apply for judicial review on 10 April 2017.  The intended judicial review was against the decision of the Torture Claims Appeal Board (“TCAB”) dated 23 March 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; he rejected it on the basis of credibility.  He went so far as to say the applicant’s oral evidence during the TCAB hearing had “all the hallmarks of a story made up to bolster another weak story.”

3.  The applicant has been in Hong Kong since February 2014 when he entered illegally only to be arrested six days later.  He lodged his claim for non-refoulement protection on 2 March 2014.

4.  I have set out the background to his claim in the CALL-1 Form in HCAL 126/2017.  In fact, the applicant was given a hearing date as requested for leave to apply for judicial review on 10 August 2017 but did not appear.  There was never any subsequent explanation for his absence.  I considered the merits of his application on the papers.

5.  My order was dated 25 August 2017 and the applicant’s explanation in his affirmation is that he did not get it in time.  His affirmation explains that he was told by an immigration officer that his application for leave to apply for judicial review was refused and the Immigration Department wanted to detain him and send him home.  His response to this was to file another Form 86 application immediately.  This 2^nd application, HCAL 1029/2017 was rejected in September 2018 for an abuse of the court’s process; the principle of res judicata applied.

6.  During this hearing, the applicant admitted that when he knew about my order, he did not appeal it but submitted another Form 86.  What he told me during the hearing is contradictory; it contradicts his affirmation.  During the hearing, he said he did receive my order and chose to file a duplicate application for leave to apply for judicial review instead of a notice of appeal.  He said he decided to do this because every application he had made to date had been dismissed and if he appealed and failed in his appeal, how else could he stay in Hong Kong?  Then, he blamed his decision for filing a duplicate application on friends who gave him advice and his ignorance of legal procedure.  In his affirmation, he claims he did not know of his right to apply to the Court of Appeal until his 2^nd duplicated Form 86 application was rejected in September 2018.

7.  In his affirmation to support this application he submits that there are merits in his intended appeal which would be sufficient reason and justification for this court to exercise its discretion in allowing this application.  However, other than saying “there is many more unacceptable and unexplainable grounds” (paragraph 7), the applicant does not include any draft notice of appeal.  In fact, he does not give any reasons why my decision was unfair and unreasonable; there is no criticism of my decision at all.

8.  I gave the applicant an opportunity during the hearing to tell me (1) what grounds of appeal he would rely on and (2) what merits he considered his appeal would have but he was unable to answer these questions.

9.  In his affirmation, he does however state that the Director of Immigration and the adjudicator of the TCAB reached the wrong decision without giving any particulars; it would appear that he is hoping the Court of Appeal will consider his application afresh.

Conclusion

10.  The applicant gives contradictory evidence as to whether he did or did not receive my order in time.  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 was just over 13 months late, a substantial delay.  His explanation on the one hand that he was unaware of his right to apply to the Court of Appeal is no excuse, ignorance of the law is no excuse.  His contradictory explanation on the other hand, that he chose not to appeal but to file another similar application is an unacceptable abuse of the court’s process.  I find no reasonable explanation for his delay in bringing the intended appeal.

11.  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; he only submits he cannot leave Hong Kong.

12.  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.

13.  The applicant’s summons dated 8 October 2018 is dismissed.