RE APPIAH SAMUEL

CAMP 154/2023, [2024] HKCA 45

On Appeal From [2023] HKCFI 360

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 154 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 2123 OF 2018)

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DECISION

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Hon Cheung JA (giving the Decision of the Court) :

1) Renewed application for extension of time to appeal

1.  On 4 October 2018, the applicant issued his application for leave for judicial review by Form 86 in HCAL 2123/2018. The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 21 August 2018 which dismissed his appeal against the decisions of the Director of Immigration (‘the Director’) dated 28 November 2013 and 19 May 2017 rejecting his non-refoulement claim. Deputy High Court Judge To refused to grant leave for judicial review on 10 February 2023.

2.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision of the Judge (i.e. by 24 February 2023). Being out of time for around 24 days, the applicant took out an application on 20 March 2023 before the Judge requesting an extension of time to appeal. The Judge on 12 April 2023 rejected the applicant’s application for extension of time to appeal.

3.  On 13 April 2023, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

4.  Under Order 59, rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application without an oral hearing. Having considered the applicant’s summons, affirmation and written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2) Factual background

5.  Briefly stated, the applicant is a Ghana national. He last arrived in Hong Kong from the Mainland in November 2005 as a visitor, but he overstayed. He raised his torture claim on 15 September 2007 and non-refoulement claim on 6 December 2013 alleging that he would be harmed or killed by an Aunt A and her supporters because he agreed to take up the position as village chief when Aunt A considered that her son should hold that position. He claimed he was kidnapped and beaten by some people who warned him not to be a village chief. His sister collapsed after stepping on some black magic powder planted by somebody which was intended to harm the applicant.

3) The Director’s Decision

6.  The Director decided against the applicant’s torture claim on 28 November 2013 and non-refoulement claim on 19 May 2017. The decisions covered Hong Kong Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) and Article 2 (right to life), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4) The Board’s Decision

7.  The applicant appealed against the Director’s Decisions to the Board. Oral hearings were conducted on 8 October 2014 and 27 July 2018. The Board dismissed the applicant’s appeals on 21 August 2018 and the Director’s Decisions were confirmed. The Board made adverse findings on the applicant’s credibility. It held that the stated facts do not show harm or threat of harm as instigated or authorized by the Government. It held that even on the applicant’s own version of events he did not require major medical treatment and there was no evidence of severe pain and physical or mental suffering reaching the minimum level of severity. State protection and internal relocation were also available. The applicant failed on all applicable grounds for non-refoulement.

5) Decisions of the Judge

8.  In his decision dated 10 February 2023, the Judge held that the Court would not interfere with the Board’s findings unless there was error of law or procedural unfairness. The Judge could not detect any such vitiating elements present in the decision.

9.  In his decision dated 12 April 2023, the Judge held that the applicant provided no explanation for his delay. The applicant did not put forward any grounds of intended appeal, nor advanced any specific challenge to the Judge’s decision. He has not identified any error made by the Judge. There was no realistic prospect of success in the intended appeal. The application for extension of time for appeal was refused.

6) Legal principles

10.  In considering whether to extend time for appeal, the Court will have regard to :

(1) length of the delay;

(2) reasons for the delay;

(3) prospect of the intended appeal; and

(4) prejudice to the putative respondent if extension of time was granted.

7) Analysis

(1) Length of delay and reasons for the delay

11.  Under Order 53, rule 3(4) of the Rules of High Court, the applicant had 14 days to appeal the decision of the Judge.

12.  The Form CALL-1 decision was handed down on 10 February 2023. The deadline for the appeal was 24 February 2023. The applicant was around 24 days late when he filed his extension of time to appeal application on 20 March 2023. The applicant only stated that he wished to appeal and did not provide any reasons for his delay.

(2) Prospect of the intended appeal

13.  In the applicant’s summons and affirmation, the applicant stated he heard from a friend that the Police in the applicant’s district and region on Ghana were looking for him because his friend had died in the police custody before his time to appear before the Court. The applicant stated that reason for his delay in the application was that the ‘locker of the mailbox is not good’.

14.  In our judgment, the applicant does not have any prospect of success in his intended appeal.

15.  The Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant either leave for judicial review or extension of time for leave for judicial review.

16.  Since the applicant has not identified any error of law or procedural unfairness in the decision of the Judge, the intended appeal does not have any prospect of success.

8) Disposition

17.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons filed on 13 April 2023.