RE DIGGS BENJAMIN W alias BENJAMIN DIGGS

CAMP 201/2021

[2022] HKCA 207

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 201 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 969 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 30 May 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 25 May 2018 dismissing his appeal against the decision of the Director of Immigration (‘the Director’) dated 27 January 2017 rejecting his non-refoulement claim (other than torture claim). The application was brought within time.

2.  In his decision of 5 March 2021, Deputy High Court Judge Bruno Chan refused to grant leave to the applicant 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, the applicant took out an application on 22 March 2021 before the Judge requesting an extension of time to appeal. The Judge on 18 May 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. On 28 May 2021, the applicant filed the present summons out of time to make a further application to this Court for extension of time to appeal. The application was late by three days.

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 Liberia national. He came into Hong Kong on 3 November 2010, permitted to remain as a visitor but overstayed. While in Hong Kong, he was convicted of several crimes including fraud, conspiracy to defraud, breach of stay condition, and obtaining property by deception. He raised a torture claim in January 2012 and his torture claim was rejected in October 2012. The applicant then petitioned against the rejection but the petition was dismissed. The applicant then raised his non-refoulement claim based on all applicable grounds other than torture risk. He claimed to be a former member of a rebel group. He feared that he would be harmed or killed by the government or other rebel groups. He also relied on threats from the Jihadists and fear of an outbreak of Ebola.

3)  The Director’s Decisions

7.  The Director decided against the applicant’s non-refoulement claim on 27 January 2017. The Decision covered Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) and Article 2 (right to life) risk, as well as other statutory and convention rights against persecution but not torture.

4)  The Board’s Decision

8.  The applicant appealed against the Director’s Decision to the Board. An oral hearing was conducted on 14 March 2018. The Board dismissed the applicant’s appeal on 25 May 2018 and the Director’s Decision was confirmed. The Board held that for persecution risk, the applicant may be a fighter in his political group in Liberia but the country of origin information does not support his claim that such a low rank and file fighter would be subject to persecution risk. For BOR 3 risk, there was no evidence that the applicant or his family members suffered any harm. For BOR 2 risk, there was no evidence that the Liberia government was still interested in the applicant.

5)  Decisions of the Judge

9.  In his decision dated 5 March 2021, the Judge held that the applicant’s grounds for leave for judicial review were broad and vague without particulars. He held that even if it was true that the hearing bundles were delivered to the applicant late, the applicant was familiar with most of the documents in the hearing bundle.

10.  In his decision dated 18 May 2021, the Judge held that the delay was insignificant. Focusing on the merits, the Judge held that the applicant did not put forward any valid grounds of appeal.

6)  Legal principles

11.  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

12.  As the delay was insignificant, we will focus on the merits of the intended application.

(2)  Prospect of the intended appeal

13.  In the applicant’s affidavit, he stated that he did not know court procedure and he did not have income source. In his written submissions, he further complained that he lacked legal representation for the BOR 2 assessment. The applicant made various complaints on procedural unfairness that largely reflect the same points as described by the Judge.

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

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

16.  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

17.  As the intended appeal is unarguable, it would be futile to give an extension of time. Accordingly, we dismiss the applicant’s summons dated 28 May 2021.