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HCAL451/2017
[2019] HKCFI 1387
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 451 OF 2017
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| Re: |
Sidibe Harouna |
Applicant |
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Before: Deputy High Court Judge Josiah Lam in Chambers
Date of Hearing: 17 September 2018
Date of Decision: 19 June 2019
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D E C I S I O N
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Introduction
1. The Applicant seeks leave to appeal out of time against the order made by Deputy High Court Judge Woodcock on 24 November 2017 in relation to his application for leave for judicial review in HCAL451/2017.
2. The Applicant is a national of Mali. He came to Hong Kong as visitor on 27 June 2011. He overstayed from 28 July 2011. He was arrested by the police on 6 March 2012. Then he lodged a non-refoulement claim.
3. The Applicant said he fled Africa because his parents were Christians and they defied the African tradition of worshipping the Oracle. The Applicant was the first son in the family so he had to be sacrificed to the Oracle in the sense that he had to dedicate himself to worship the Oracle for his entire family. The Applicant said the Oracle had haunted him. He thought he could only get rid of it by leaving Africa.
4. In the ensuing two-tier screening process here, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
5. The Applicant filed an application for leave for judicial review on 25 July 2017, naming the Board as the putative respondent.
6. Deputy High Court Judge Woodcock (“the Judge”) heard the Applicant on 6 November 2017.
7. On 24 November 2017, the Judge gave her decision. She found the Applicant's application for leave for judicial review was out of time. [The Board's decision was dated 31 March 2017 and the Applicant only applied for leave for judicial review on 25 July 2017. Excluding the three-month grace period for filing, the Applicant was 25 days late.] The Judge found the Applicant had no good reason for his delay.
8. The Applicant also admitted to the Judge that he had no grounds for seeking leave for judicial review.
9. On 24 November 2017, the Judge dismissed the Applicant's application for leave for judicial review. The Applicant did not appeal against the Judge’s decision within 14 days.[5]
Grounds of application for extension of time
10. On 3 September 2018, the Applicant took out a summons asking for extension of time to appeal against the Judge’s decision. He said in his affirmation that he did not know the procedure. A friend briefed him on how to appeal. The Applicant said he was not satisfied with the Judge’s decision.
11. I heard the Applicant on 17 September 2018. He was in person. He said he did not know he had to file his appeal within 14 days from the Judge’s decision.
12. The Applicant was told he had to state his grounds of appeal by pointing out the Judge’s mistakes (if any) to demonstrate he had a reasonable prospect of success in his intended appeal. The Applicant could only provide a one-page statement in court. In that statement, the Applicant just briefly repeated his claim of fear and his dissatisfaction of the Judge’s decision. He could not specify any error committed by the Judge.
Discussion
13. In considering whether to extend time for appealing against an order to refuse leave for judicial review, the court will have regard to: (i) the length of delay; (ii) the reasons for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the putative respondent if extension of time was granted.[6]
14. The Applicant should file his appeal against the Judge’s order within 14 days from 24 November 2017. Yet, he only applied for extension of time nine odd months later on 3 September 2018. He was very late. The prejudice that would be caused to the putative respondent could not be said to be insignificant.
15. The Applicant said he did not know the procedure to appeal and the14-day requirement. That was not a good reason.
16. It is said in Nupur Mst v Director of Immigration [2018] HKCA 524 that in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant and the prospect of an appeal is assessed by reference to his intended grounds of appeal. The Court of Appeal would not examine the decision of the Board afresh as if it is a fresh application for judicial review.
17. It is repeated in Re Islam Rafiqul that “…In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an applicant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong…”.[7]
18. The Applicant was invited to specify all his complaints of the Judge’s decision to show he had a reasonable prospect of success in his intended appeal. However, he failed to show he had any concrete ground of appeal.
19. The Judge dismissed the Applicant's application for leave for judicial review. She was right to do so because the Applicant failed to convince the Judge that he had good reason to justify his delay in applying for leave for judicial review. It is a pre-requisite in late application for leave for judicial review.[8] If the court is not satisfied that there is good reason for extending time, then no application for judicial review can be made in accordance with Order 53 rule 4(1) of the Rules of High Court.
20. The Applicant could not point out the Judge had committed any errors of law or failed to take account of relevant matters already placed before her or was otherwise plainly wrong. The Applicant does not have any viable ground for the Court of Appeal to consider that the order made by the Judge on 24 November 2017 should be reversed. He fails to show any reasonable prospect of success in his intended appeal.
Conclusion
21. The Applicant does not have any good reason for his delay in lodging appeal. He also fails to show he has any reasonable prospect of success in his intended appeal. I thus refuse his application for leave to appeal out of time.
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(Josiah Lam) |
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Deputy High Court Judge
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The Applicant appeared in person.
[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.
[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] Order 53 rule 3(4) of the Rules of the High Court.
[6] See Chee Fei Ming v Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Suk Man v Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22.01.2016).
[7] Re Islam Rafiqul [2018] HKCA 570, para 14(2).
[8] CACV 110/2016 Kwok Cheuk Kin, para 17.
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