UDEH DOMINIC ONYEMAECHI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 120/2019

[2019] HKCA 1176

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 120 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 785 OF 2017)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  This is the applicant’s application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 28 August 2019[1]dismissing his application for extension of time to appeal against the judge’s decision refusing leave to apply for judicial review concerning his non-refoulement claim.

2.  The Registrar of Civil Appeals had directed on 9 September 2019 that the notice of motion shall be determined on paper only without an oral hearing pursuant to paragraph 3 of Practice Direction 2.1.  We find it appropriate to do so and will determine this application on paper.

3.  In dealing with this application, the procedural history of the application for leave to seek judicial review in the High Court is relevant and we set this out as follows.

4.  The applicant filed a Form 86 and an affidavit on 19 October 2017 to seek leave to apply for judicial review against the decisions of the Director of Immigration (made on 5 January 2015 and 26 October 2016) and the Torture Claims Appeal Board (made on 12 December 2016).  The application for leave to apply for judicial review was made outside the three-month period under Order 53 rule 4(1) of the Rules of the High Court and was 104 days out of time.

5.  On 27 July 2018, Campbell-Moffat J dismissed the leave application aforesaid, as the applicant had submitted no explanation for his delay and had not sought leave for an extension of time.

6.  The judge’s decision dismissing the application for leave to apply for judicial review out of time (“the July 2018 Decision”) is an interlocutory decision (Kwok Cheuk Kin v Leung Chun Ying; MI & Anr v Permanent Secretary for Security [2018] 4 HKC 440 at §§21, 28, 29, 44 and 45).  Section 14AA(1) of the High Court Ordinance, Cap 4 applies and leave to appeal against the July 2018 Decision is required.

7.  On 10 August 2018, the applicant applied for leave to appeal against the July 2018 Decision.  The judge granted leave to appeal on 8 October 2018[2] on condition that the applicant shall file with the court documentary confirmation from the Director of Legal Aid of his application for Legal Aid in respect of his application for judicial review and the date of refusal of that application within 14 days. 

8.  The applicant duly complied with the condition imposed, so leave to appeal was granted to him by the judge on 19 October 2018[3]. 

9.  However, he did not proceed with the appeal thereafter.  He did not serve a notice of appeal within 7 days after 19 October 2018, as required under Order 59 rule 4(1)(a), and hence needed leave to extend time to appeal[4].  On 31 January 2019, he filed a summons in those terms and attended a hearing of that application before the judge on 24 May 2019.

10.  Under Order 59 rule 2B(6), the judge has power to extend time for making an application for leave to appeal before or after the expiry of the period.  Having considered the procedural background, in particular the length of the delay in progressing his appeal, the reason given for the delay as well as the underlying merits of his application both as to judicial review and on appeal, the judge rejected the application on 27 May 2019, as it would not be in the interest of justice to grant an extension of time in all the circumstances[5].

11.  The applicant filed a renewed application with the Court of Appeal seeking leave for an extension of time to appeal on 10 June 2019. Pursuant to Order 59 rule 2B(3), such further application may be made to the Court of Appeal.  As mentioned at the outset of this judgment, this application was dismissed by the Court of Appeal on 28 August 2019, having taken into account the length of the delay and the lack of merits of the intended appeal.  As a result, the applicant was refused leave to appeal to the Court of Appeal against the July 2018 Decision.

12.  Not having pursued his appeal against the July 2018 Decision within time, the applicant required leave to appeal out of time.  Leave was refused by the judge on 27 May 2019, and by the Court of Appeal on 28 August 2019. Under section 14AB of the High Court Ordinance, no appeal lies from a decision of the Court of Appeal as to whether or not leave to appeal to it should be granted.  In other words, the decision of the Court of Appeal on 28 August 2019 refusing leave to appeal is final.

13.  In Re Shah Zafar Ali [2019] HKCA 186 at §§6 and 7, the Court of Appeal applied section 14AB and refused to grant leave to appeal to the Court of Final Appeal where the Court of First Instance refused an application for leave to apply for judicial review out of time.

14.  For the above reasons, we apply the finality provision in section 14AB and dismiss the notice of motion seeking leave to appeal to the Court of Final Appeal.