RE KENENNA CHIGOZIE CHUKWUJEKWU

CAMP 353/2021

[2021] HKCA 2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 353 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 169 OF 2018)

____________________

____________________

____________________

D E C I S I O N

____________________

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

1)  Renewed application for extension of time to appeal

1.  On 5 February 2018, the applicant issued his application for leave for judicial review by Form 86. The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 15 September 2017 dismissing his appeal against the decision of the Director of Immigration (‘the Director’) dated 20 April 2016 rejecting his non-refoulement claim.  The application was brought out of time by almost two months.

2.  In his decision of 16 June 2020, Deputy High Court Judge Bruno Chan refused to grant extension of time to the applicant for leave to apply for judicial review and dismissed his application for leave to apply for judicial review.

3.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision.  Being out of time for more than nine months, the applicant took out an application on 22 April 2021 before the Judge requesting an extension of time to appeal.  The Judge on 12 August 2021 rejected the applicant’s application.    

4.  Under Order 59, rule 14(3) of the Rules of the High Court, the applicant may, within seven days after the Judge’s refusal, make a renewed application to this Court for extension of time to appeal (i.e. by 7 September 2021 since August is summer vacation).  On 23 August 2021, the applicant filed the present summons within time to make a further application to this Court for extension of time to appeal. 

5.  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

6.  Briefly stated, the applicant is a Nigeria national.  He entered Hong Kong as a visitor in October 2008 but overstayed.  The applicant raised his non‑refoulement claim in November 2009 on his fear that he would be harmed or killed by the Oduduwa People Congress and Boko Haram and the Nigeria government because of him being a member of another political group and for being a Christian.

3)  The Director’s Decisions

7.  The Director decided against the applicant’s non‑refoulement claim on 20 April 2016.  The Decision covered Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

8.  The Director further decided against the applicant’s right to life claim on 22 June 2017 (‘the Director’s Further Decision’).  The Director’s Further Decision covered Article 2 (right to life) of the Bill of Rights (‘BOR 2’).

4)  The Board’s Decision

9.  The applicant appealed against the Director’s Decision to the Board on 3 May 2016.  An oral hearing was conducted on 29 August 2017.  The Board dismissed the applicant’s appeal on 15 September 2017 and the Director’s Decision and Director’s Further Decision were affirmed. The Board held that there were many inconsistencies in the applicant’s claim and he failed to establish the credibility of his claim by his absence at the hearing.  The applicant’s enemies were non-state actors.  There was no evidence that the applicant was being targeted by terrorists of his enemy’s political group.  No public officials had any connection with the applicant’s claim.  There was no evidence of state acquiescence.  There was no evidence that the police were seeking to arrest the applicant.  The definition of torture was not satisfied.

5)  Decisions of the Judge

10.  In his decision dated 16 June 2020, the Judge held that the applicant merely repeated his claim that his life was in danger.  There was no error of law or procedural unfairness.

11.  In his decision dated 12 August 2021, the Judge held that he did not accept the bare assertion of the applicant that he never received the Court’s decision in his mail.  He held that the applicant did not put forward any proper ground of appeal, and there was an absence of error in the Court’s decision.  

6)  Legal principles

12.  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

13.  Under Order 53, rule 4 of the Rules of High Court, the applicant had three months from the Board’s decision to take out an application for leave for judicial review in the High Court.  He was almost two months late when he filed his Form 86.  He did not provide any reason for his delay but simply repeated his claim that his life was in danger.  We agree with the Deputy Judge that the applicant failed to show any error of law in the Board’s decision and his extension application for leave for judicial review was rightly refused.

14.  The Form CALL-1 decision was handed down on 16 June 2020.  The applicant had 14 days to appeal the decision as of right (i.e. by 30 June 2020).  The applicant was more than nine months late when he filed his extension of time to appeal application on 22 April 2021.  The lateness was substantial.  Due to the serious delay, the intended appeal must satisfy real prospect of success before an extension of time will be granted : Re Ansar Muhammad [2018] HKCA 227. The applicant made bare assertion that he never received the decision in his mail, but the Court record showed that the decision was mailed to him without being returned undelivered.  Importantly, the applicant did not state any proper grounds for applying for extension of time.

15.  The present summons for a renewed application for extension of time to appeal was filed on 23 August 2021 within time.

16.  In the applicant’s summons and affidavit, the applicant repeated that he was out of time because he did not receive any letter from the Court until he asked the relevant people about his case.  In the present application, he stated that he shared letter box with other occupants.  As the Deputy Judge has pointed out, according to the Court record, the relevant documents had been sent out by post to the applicant without any notice of them being returned undelivered.

(2)  Prospect of the intended appeal

17.  The applicant referred to the background of his case but he failed to show any error in the Board’s decision.  In our judgment, the applicant does not have any prospect of success in his intended appeal.

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

19.  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

20.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 23 August 2021.