RE AMIENGHEMHEN AYERE PRECIOUS

HCAL 659/2017

[2019] HKCFI 607

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 659 OF 2017

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D E C I S I O N

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1.  On 17 July 2018 Deputy High Court Judge Woodcock refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing his appeal/petition regarding 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 23 October 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 ended on 31 July 2018, and hence he was late by one month and three weeks with his intended appeal after taking into account of the Court’s summer vacation.

3.  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.

4.  In the applicant’s case a delay of almost two months must be regarded as significant or substantial, for which he explained in his supporting affirmation of the same date that it was due to financial problems but without any further particulars or elaboration.

5.  At the hearing of his summons before me the applicant however changed his explanation that the delay was due to the fact that he had changed his address without informing the court and therefore did not receive the decision until he was later informed by the Immigration Department.  If that was indeed the case the delay was of course due to his own fault, but as he further disclosed that he changed his address only in October 2018 while the decision was sent to his last known address on 17 July 2018, that clearly could not have been the reason for not receiving the decision or lodging his appeal within the required time.  As such I do not accept that he has given any good reason for his substantial delay.

6.  Nor did he provide in his summons or affirmation any draft or proposed ground for his appeal, or any particulars as to any error in the decision or why it was unreasonable or unfair, and at the hearing he merely repeated his complaint as before the learned judge that he was not given any hearing for his BOR 2 risk claim by the Board, of which the learned judge had already properly and adequately dealt with in paragraphs 12 – 24 of her decision, and in the absence of any legal error or procedural unfairness being shown by him, I do not see any viable ground for him to argue that her decision be reversed in his intended appeal.

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