RE ABDOU ISSAKA

HCAL 494/2021

[2021] HKCFI 3626

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 494 OF 2021

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D E C I S I O N

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1.  The applicant is a national of Niger.[1] He came to Hong Kong on 22/8/2015. He was permitted to stay until 25/8/2015. He overstayed until 19/11/2015 when he was arrested by the police. He raised a non-refoulement claim in this case on 20/11/2015.

2.  He feared that he might be harmed or killed by his uncle if he returned to Niger.  His uncle had a land dispute with his father.

3.  Since childhood, he knew his father and his uncle had a long standing dispute over the land left by his grandfather.  However, it had not involved violence.  

4.  One morning in July 2012 in his house, his father and brother were shot dead by his uncle’s men. It was because of the land dispute. He and his mother immediately escaped to Aba City, Nigeria. His mother urged him to travel to other countries for long term safety. He had stayed in exile at various places [2]. He had been to Hong Kong for 10 times before August 2015. He only learned of the non-refoulement protection scheme after his arrest in November 2015.

5.  The Director rejected her claim on 18/5/2018.  The TCAB rejected her appeal on 3/4/2019.

6.  The adjudicator fixed a hearing on 27/7/2018.  The applicant asserted he was unfit. He was unable to provide any medical proof. Another hearing was fixed on 21/9/2018, the applicant refused to attend. There was no explanation. The adjudicator decided to deal with the appeal on papers.[3]

7.  The adjudicator found that it was very strange that he only fled. He did not report the murders of his father and brother to any authorities in Niger or Nigeria when he was safe. It was his speculation that the police would not assist because they were corrupt. He had travelled to various places in exile. There was no evidence about the source of financial support. The applicant did not explain the reason for staying in those countries. He had been to Hong Kong for 10 times. He did not apply for non-refoulement protection. He was already 34 at the time of the murders. He was unable to give more detail about the land dispute. The adjudicator concluded that the claim was not plausible.

8.  On 9/4/2021, the applicant applied for leave for judicial review of the TCAB decision. He was out of time for about 21 months.  In his affidavit, the applicant asserted that the problem in Niger had not been resolved.  His life was still in danger.

9.  The applicant had provided no explanation for failing to attend the 2 hearings at the TCAB.  I agree with the adjudicator that the appeal should be dealt with on papers.

10.  The adjudicator correctly pointed out the doubtful points in the evidence. The adjudicator found that the applicant’s story was not plausible and rejected the factual bases of his claim. In my view, the adjudicator’s conclusion is reasonable.  There is no error of law and procedure.  The intended judicial review is not reasonably arguable.

11.  The applicant is out of time in filing the leave application by about 21 months.  He did not apply for extension of time.  He did not provide any explanation for the delay. 

12.  In considering whether there is good reason for the delay, I have to consider the length of the delay, the reasons for the delay, the merits of the substantive application and the prejudice to the putative respondent if time extension was granted. [4]

13.  The delay is substantial.  There is no explanation.  It is undue delay. The intended judicial review is of no merit.  In the circumstances, there is no good reason to extend time for the leave application. This court also refused leave for the intended judicial review on 2/11/2021.

14.  The applicant filed a summons on 18/11/2021 for extension of time to appeal against the decision of this court.  He was 2 days out of time. In the summons, he reiterated that he disagreed with the decisions of this court, the TCAB and the Director.

15.  In considering whether to extend time for appeal against the refusal of leave to apply for judicial review, this court will take into account: (1) the length of 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]

16.  The applicant is out of time for about 2 days. There was no explanation. At this stage, the merits of the intended judicial review is also an important issue [6].

17.  The adjudicator was justified in rejecting his evidence for the reasons set out in paragraph 7 above. The applicant’s factual basis was implausible. His delay in applying for protection damaged his credibility. The adjudicator was also correct to deal with the appeal on papers. The applicant was not cooperative and gave no explanation for frustrating the two TCAB hearings.  In my view, the intended judicial review was of no merit.

18.  In the circumstances, I refuse the application for extension of time to appeal.