RE AMIENGHEMHEN AYERE PRECIOUS

CAMP 113/2019

[2019] HKCA 1209

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 113 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 659 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 21 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 Director’s decision and the decision of the Torture Claims Appeal Board (‘the Board’) dated 28 October 2016 dismissing his appeal against the decision of the Director of Immigration (‘the Director’) dated 20 July 2016 rejecting his non-refoulement claim. The application was filed within time.

1.3 On 17 July 2018, Deputy High Court Judge Woodcock (‘Judge Woodcock’) dismissed the applicant’s application.

1.4 The applicant was entitled to appeal against Judge Woodcock’s refusal as of right. But as he did not do so within the 14-day period specified by law, he had to obtain an order for extension of time to appeal. Being about two months out of time, the applicant issued an application on 23 October 2018 requesting essentially for an extension of time to appeal. Deputy High Court Judge Bruno Chan (‘Judge Chan’) on 2 April 2019 rejected the applicant’s application for an extension of time to appeal.  

1.5 By a summons dated 3 June 2019, the applicant applied for an order that :

‘ all supporting document will be submitted within a short period.’

1.6 We will treat this summons as a renewed application for extension of time to appeal before this Court as his supporting affidavit was concerned with Judge Chan’s order on extension of time. 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.

1.7 Under Order 59, rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application like the present one without an oral hearing. Having considered the summons and the affidavit filed, 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 was on transit from Hong Kong to Fiji but before entering Fiji he was refused permission to land and was returned to Hong Kong. Later, a letter from the UNHCR was sent to the Immigration Department stating that the applicant would be subject to persecution if he was returned to Nigeria.  He subsequently raised a non-refoulement claim based on his fear that he would be harmed or killed by the people of Mother Temple, an underground terrorist group, because he had decided to quit the 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 20 July 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 4 January 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 and the Board’s Further Decision

4.1 The applicant appealed against the Director’s Decision to the Board. The oral hearing was conducted on 20 October 2016. The Board dismissed the applicant’s appeal on 28 October 2016. In gist, the Board found that there was no reliable evidence to prove the existence of the applicant’s alleged terrorist group called Mother Temple [Board Decision at para 72].

4.2 It was only after the Board’s Decision that the Immigration Department issued to the applicant the Director’s Further Decision. The applicant appealed to the Board against the Director’s Further Decision and failed. The Board determined this application without a hearing according to law on 23 June 2017.

5)  Decision of Judge Woodcock

5. Judge Woodcock found that the only ground that the applicant’s application had some substance was the argument that he was not given an oral hearing in his BOR 2 appeal. But she found that the Board’s decision not to conduct an oral hearing to consider BOR 2 risk was without fault. The applicant was given a chance in his first hearing to provide evidence. The case was the same as was previously. There was neither the need nor the justification to hold another hearing.

6)  Judge Chan’s decision

6. Under Order 53, rule 3(4) of the Rules of the High Court, the 14-day period for the applicant to appeal against the decision of Judge Woodcock expired on 31 July 2018. On 23 October 2018, taking into account Court holidays, and being about one month and three weeks late, the applicant filed his application for an extension of time to appeal, which was listed for hearing on 27 February 2019. Judge Chan held that the applicant failed to give a proper reason for the delay. Further the applicant could not specify any legal error in the decision of Judge Woodcock.

7)  Legal principles

7.1 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.

7.2 Likewise the same consideration will apply to the present application for extension of time. The applicant has not explained the reason for his delay. But we will consider the merits of his intended appeal against the Judge Woodcock’s decision of 17 July 2018 having regard to the above consideration.

8)  Analysis

(1) Length of delay and reasons for the delay

8.1 The applicant was more than one month late when he filed summons in the court below for extension of time to appeal. The Judge held that the applicant had failed to give a proper reason for the delay. In any event, there was no merit in the applicant’s application.

(2) Prospect of the intended appeal

8.2 Having considered the applicant’s materials, we come to the view that the intended appeal of the applicant has no prospect of success.

8.3 In the present summons, the applicant merely stated that ‘supporting documents will be submitted within a short period’. In his supporting affidavit, he merely stated that his summons in the court below for an extension of time to appeal was ‘dismissed without appropriate consideration’. We are of the view that these are bare allegations unsupported with reason nor evidence. No particulars were provided by the applicant.

8.4 The applicant has failed to lodge his written submissions according to the stipulated ‘unless’ period as directed by the Registrar of Civil Appeals on 2 July 2019. We have considered the applicant’s application based on the documents available.

8.5 The applicant has not identified any error in the decision of the Judge Woodcock. We are of the view that the intended appeal does not have any prospect of success.

9)  Disposition

9. As the intended appeal is unarguable, it will be futile to grant any extension of time.  Accordingly, we will dismiss the applicant’s summons dated 3 June 2019.