RE EDWEAD JOHN also known as EDWEAD SHAIBU

HCAL 76/2017

[2018] HKCFI 2390

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 76 OF 2017

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D E C I S I O N

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1.  On 8 February 2018 I refused to grant leave to the applicant to apply for judicial review of the Board’s decision for dismissing his appeal against the Director’s decision for rejecting his non-refoulement claim upon finding none of the proposed grounds were reasonably arguable and that there was no prospect of success in his intended application.

2.  The applicant now by a summons issued on 29 August 2018 applies for leave to appeal against my 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 22 February 2018, and hence the applicant was late by more than six months.

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 case of the applicant a delay of more than six months must be considered as excessive.  In his summons the applicant gave his reason for the delay that he did not receive the letter from the Court enclosing the decision until he was given a copy by his Immigration officer when he reported on his recognizance, and that he needed time to put together further evidence.

5.  In his supporting affirmation of the same date he further clarified that as he needed some documents in support of his case which required a lot of searches and some thorough investigation updating his case from the Country of Origin Information (“COI”), he needed time to obtain financial assistance to pay for the court fees of his application.

6.  In my judgment none of these reasons are acceptable for such lengthy delay, and that a close examination of the four pages of statement for his intended appeal exhibited to his affirmation reveals no reasonably arguable grounds either.

7.  In that statement the applicant mainly repeated his claim of thedangers that he had faced in his home country in Ghana, that how unfairly he had been treated by the authorities in Hong Kong, and how he has devoted his time helping the Hong Kong police in combating crimes, and sought to adduce new evidence from the COI as to the present situations in Ghana so that his case can be seriously considered again, none of which bear any relevance to the reasons given in my decision in refusing him leave to applyfor judicial review, nor to those in the Board’s decision in rejecting his claim and dismissing his appeal essentially on his credibility, the evaluation of which as pointed out in my decision the adjudicator was perfectly entitled to do as the primary decision maker based on the evidence then available to the Board.

8.  As has been repeatedly emphasized by the Court of Appeal, in particularly as to the general propositions stated by Lam VP in Re Nupur Mst [2018] HKCA 524, although in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court will not usurp the role of the Boardwhen the assessment of evidence is within its province in the absence of any errors of law or procedural unfairness or irrationality in its decision, hence an appeal against the refusal of leave by a judge in the Court of First Instanceis not the occasion for regurgitating arguments advanced and rejected by thejudge or for running arguments which could and should have been raised but were not raised before the judge, and in the determination of an appeal the Court of Appeal focuses on the decision of the judge which would only be reversed if the appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or otherwise plainly wrong.

9.  Hence it follows, as pointed out by Lam VP in his propositions, that in an appeal the scope for admission of fresh evidence and for new arguments to be run is limited, and the general rule is that the appellant has to satisfy the requirements in Ladd v Marshall [1954] 1 WLR 1489: see Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Romail [2018] HKCA 186; Fayomi v Chief Secretary for Administration [2018] HKCA 194.

10.  As explained in the Board’s decision, the applicant’s claim of risk of harms upon return to Ghana for having been involved in a hunting group and/or land guards prior to his departure in 2003 was rejected on his credibility, whilst those new COI exhibited to his affirmation mostly referred to the current situation of the land guards in Ghana and their arrests and prosecutions by the police for their illegal activities which are not relevant to the applicant’s alleged involvement back in 2003 or earlier, and would not in my judgment advance his case any further given the findings by the Board, nor would they be accepted by the Court of Appeal which as noted above would only examine my decision in light of the grounds, if any, advanced bythe applicant, as it is not their role to examine the decision of the Board afreshas if it is a fresh application for judicial review, otherwise an applicant could flagrantly disregard, as did the applicant in the present case, the stringent time limit under Order 53, rule 4(1) of the Rules of the High Court, Cap 4A: see Re Qadir Sher [2018] HKCA 160; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Ali Haider [2018] HKCA 222; Re Fitri Ambarwati and Maria Zubair [2018] HKCA 461; and Re Muhammad Usman [2018] HKCA 474.

11.  In the premises and for these reasons I am not satisfied that the applicant has put forward any reasonably arguable ground for his intended appeal, or that it has any prospect of success, hence it would be futile to extend the time for appealing.  Accordingly I refuse his application for leave to appeal out of time, and dismiss his summons.