RE KARIMOU ISSA BACHIROU

HCAL 1514/2018

[2022] HKCFI 508

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1514 OF 2018

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D E C I S I O N

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1.  The applicant is a national of Benin. He also had citizenship in Nigeria. He came to Hong Kong on 17/6/2014. He was permitted to stay until 1/7/2014. He overstayed until 19/6/2015 when he surrendered to the Immigration Department. He raised the non-refoulement claim in this case on 17/7/2015.

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

3.  Around Christmas 2012, when the whole family was in Benin, his father and sister were shot dead by his uncle and other men. It was because of the land dispute. He and his mother immediately escaped to Nigeria. Since then, he inherited the land as he was the only son in the family. In 2013, there were 5 occasions that some gangsters looked for him at his home. He was not there. In December 2013, a stranger sent by his uncle threatened him on the phone to leave Nigeria.  Later in June 2014, he obtained his Beninese passport and a visa to China. He then left Nigeria for China. He came to Hong Kong on 17/6/2014. He delayed his application for about a year as he was scared.

4.  The Director rejected her claim on 29/7/2016.  The TCAB rejected her appeal on 28/6/2018.

5.  The adjudicator found that the applicant failed to prove the events before he left Benin for China. He overstayed for about a year before filing this claim. This fact damaged his credibility. The land dispute existed before he was born. It only developed into a problem when he was 30-years-old. The applicant could not explain. The evidence about the escape was sketchy. The description of how he travelled to other cities during the escape was unreliable. There was no evidence that the stranger on the phone was sent by his uncle. It was pure speculation.

6.  On 31/7/2018, the applicant applied for leave for judicial review of the TCAB decision. He asserted that his life was still in danger.

7.  The adjudicator correctly pointed out the contradictions in the evidence. He was justified to reject the factual bases of the applicant’s claim. In my view, the adjudicator’s conclusion is reasonable. The delay in filing the claim was not explained satisfactorily. There was no error of law and procedure.  The intended judicial review was not reasonably arguable. I refused leave for the intended judicial review on 2/12/2021.

8.  The applicant filed a summons on 5/1/2022 for extension of time to appeal against the decision of this court.  He was nearly 3 weeks out of time. In the summons, he reiterated that he did not want to return to his home country as his life was in danger.

9.  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.[1]

10.  The applicant is out of time for nearly 3 weeks. There is no explanation.  At this stage, the merits of the intended judicial review is also an important consideration [2].

11.  The adjudicator was justified in rejecting his evidence for the reasons set out in paragraph 5 above. The applicant’s factual basis was implausible. His delay in filing the claim damaged his credibility. In my view, the intended judicial review was of no merit.

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