RE AWOLOR ANTHONY TOYIN

CAMP 146/2019

[2019] HKCA 1193

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 146 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 587 OF 2017)

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D E C I S I O N

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

1)  Renewed application for extension of time to appeal

1.1  On 5 September 2017, the applicant issued his application for leave for judicial review by Form 86.

1.2  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 11 August 2017 dismissing his appeal against the decision of the Director of Immigration (‘the Director’) dated 10 May 2016 and the Notice of Further Decision dated 11 May 2017 in rejecting his non-refoulement claim.  The application was brought within time.

1.3  On 25 June 2018, Deputy High Court Judge Woodcock dismissed the applicant’s application.  

1.4  Being around 10 months out of time, the applicant took out an application on 10 May 2019 before the Judge requesting essentially for an extension of time to appeal.  The Judge on 24 June 2019 rejected the applicant’s application for an extension of time to appeal.  

1.5  On 26 June 2019, the applicant by summons together with a supporting affidavit issued a renewed application for extension of time to appeal before this Court.  For an explanation of the procedural provisions engaged, see : Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at paras 3 to 8.  The applicant lodged his written submissions on 18 July 2019.

1.6  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, affidavit 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

2.  Briefly stated, the applicant is a Nigerian national.  He overstayed in Hong Kong.  He subsequently raised a non-refoulement claim based on his fear that he would be harmed or killed by his deceased wife’s elder brother who is by the name of Musa belonging to an extremist Muslim group.

3)  The Director’s Decision and the Director’s Further Decision

3.1  The Director decided against the applicant’s non-refoulement claim on 10 May 2016.  The Decision covered Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) risk, persecution risk, and torture risk.

3.2  By a Further Decision of the Director dated 11 May 2017, the Director also assessed BOR Article 2 (right to life) risk in respect of the applicant and decided against the applicant.

4)  The Board’s Decision

4.  The applicant appealed against the Director’s Decision and the Director’s Further Decision to the Board.  The oral hearings were conducted on 8 May 2017 and 25 July 2017.  The Board dismissed the applicant’s appeal on 11 August 2017.  In gist, the Board rejected the applicant’s claim upon a finding of a lack of credibility on the applicant.

5)  Decisions of the Judge

5.1  In his decision dated 25 June 2018, the Judge was of the view that even though the Board may not have directly addressed the additional material provided to the Board by the applicant, it did not change the Board’s findings against the applicant’s credibility.  There was no error of law by the Board.  

5.2  In her decision dated 24 June 2019, the Judge held that she could not find any criticism from the applicant for her decision of 25 June 2018. 

6)  Legal principles

6.  In Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22 January 2016), 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)  Length of the delay;

(2)  Reasons for the delay;

(3)  Prospect of the intended appeal;

(4)  Prejudice to the putative respondent if extension of time was granted.

7)  Analysis

(1)   Length of delay and reasons for the delay

7.1  The applicant was around 10 months late when he filed summons in the lower court for extension of time to appeal.  The delay was very substantial.  Therefore, the intended appeal must satisfy real prospect of success before an extension of time will be granted: Re Ansar Muhammad [2018] HKCA 227.

(2)   Prospect of the intended appeal

7.2  In our judgment, the applicant does not have any prospect of success in his intended appeal.

7.3  In the present application, the applicant’s handwritten summons and affidavit are hard to comprehend. Trying our best, it seems that the basis of his complaint is that he fears for his life if he was refouled.  No particulars were provided by him.

7.4  It is also very difficult to comprehend his written submission.  Doing our best, he regurgitated background information of his case.  He pleaded that going back to Nigeria would be very dangerous for him.  He alleged that it is safe for him in Hong Kong.  He stated that he has a wife here in Hong Kong.  He repeated that he had no money to attend Court before the Judge.  Nowhere can we find any complaint about any legal error in the decision of the Judge.

7.5  The focus of an appeal in this Court is the correctness of the decision of the first instance Judge.  Since the applicant has not identified any error of law or procedural unfairness in the decision of the Judge, the intended appeal cannot have any prospect of success.

8)  Disposition

8.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 26 June 2019.