RE ADUMEKWE ROWLAND EJIKE

HCAL 924/2017

[2019] HKCFI 189

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 924 OF 2017

______________

________________________

D E C I S I O N

________________________

1.  On 7 September 2018 I refused to grant leave to the applicant to apply for judicial review of the decisions of the Director of Immigration and of the Torture Claims Appeal Board in rejecting his non-refoulement claim upon finding none of the grounds put forward by him as reasonably arguable or with any prospect of success in his intended application.

2.  The applicant now by a summons issued on 7 December 2018 seeks leave to appeal against that decision out of time, as the 14-day period for him to lodge his appeal under Order 53, rule 3(4) of the Rules of the High Court, Cap 4A expired on 21 September 2018, and hence he was late by two and a half months.

3.  On 4 January 2019 the Court received a notice of the applicant’s application for legal aid, but given the proximity of the hearing of his summons scheduled for 8 January 2019, I lifted the statutory stay and directed the applicant to attend the scheduled hearing for his application on 8 January 2019, which he did. 

4.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

5.  In the applicant’s case a delay of two and a half months must be regarded as substantial, of which he explained in his supporting affirmation of the same date that he did not receive any letter from the Court and hence was not aware of the decision until 5 December 2018 when he was so informed by the Immigration Department and it was only on the following day that he personally attended the Court to obtain a copy of the decision.

6.  The Court record however shows that the decision was posted to the applicant on the same date of 7 September 2018 to the address provided by him at his own residence in Yuen Long where he lives with his wife.  At the hearing of his summons the applicant insisted that he never received the decision posted to his address as it probably got lost in the post, which explanation I find as speculative and too much of a coincidence, and which I do not accept as credible.

7.  Nor was he able to give any satisfactory explanation as to why he had waited until a few days before the hearing of his summons to make his application for legal aid when he claimed not to know his way around but admitted that he has been living in Hong Kong since 2007 and that his wife who is a local resident did accompany him to the Court to issue his summon on 7 December 2018 where the Legal Aid Department is only next door.  His legal aid application only made at the eleventh hour seems to me a deliberate attempt to cause further delay to the legal process of his non-refoulement claim which has gone on far too long since 2009 that I do not believe that any postponement of the applicant’s summons is justified.  I therefore proceed to deal with his application to consider the prospect of his intended appeal.

8.  However, I am unable to find either in his summons or his affirmation any draft or proposed ground for his appeal, or any particulars asto any error in the decision or why it was considered as unfair or unreasonable, while his assertions in his affirmation of the ‘Latest Development in Nigeria’that the Nigerian government had failed to stop or curtail the killings of Christians by the Fulani herdsmen and Boko Haram in his home town and neighbouring regions are new evidence which are unsubstantiated and lack particulars, whilst his alleged fears of their potential threats to his life if refouled to Nigeria had all been argued in his appeal before the Torture Claims Appeal Board and properly canvassed and dealt with by the Board in paragraphs 47 – 51 and 56 – 65 of its decision, and in which the applicant had failed to identify, as I have found, any error of law or procedural unfairness or irrationality.

9.  Neither was he able to do so at the hearing of his summons nowbefore me despite being invited to elaborate on any error which he might be able to identify in the Court’s decision which he now wishes to challenge,and in the absence of which I am unable to see any prospect of success in his intended appeal.

10.  In the premises it would be futile to extend time for what appears to me a hopeless appeal.  I therefore refuse his application for leave to appeal out of time, and dismiss his summons accordingly.