RE ONYEJI CHIMEZIE KINGSLEY

HCAL 602/2019

[2022] HKCFI 3215

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 602 OF 2019

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D E C I S I O N

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Introduction

1.  This is an application dated 25 July 2022 to appeal my decision of 15 March 2022 refusing leave to apply for judicial review. The applicant had 14 days in which to apply to appeal that decision. He did not do so. He now requires leave to extend time to appeal against that order. The applicant attended court without the benefit of an interpreter as he speaks fluent English.

Procedural Background

2.  The applicant is a claimant under Article 3 of the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment. He entered Hong Kong lawfully on 27 April 2014 but thereafter overstayed. He submitted a non-refoulement (“NRF”) claim on 31 July 2017. He was interviewed by the Director of Immigration (the “Director”) on 21 August 2017. The Director dismissed his claim under all heads, by Notice of Decision on 31 August 2017. He appealed that Decision to the Torture Claims Appeal Board (the “TCAB”). The adjudicator of the TCAB, Mr Kevin Edward Ball, refused his appeal on 31 December 2018.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 4 March 2019 and did not request an oral hearing. The matter was therefore considered on the papers. His application for leave to apply for judicial review was refused on 15 March 2022. He had 14 days from that date to appeal that decision which would have expired on 29 March 2022. By way of summons dated 25 July 2022, he now seeks leave to appeal out of time.

4.  An applicant does not require leave to appeal against a CFI judge’s refusal to grant leave to apply for judicial review (Order 59, rule 21(1)(g)). The applicant may appeal as of right. However, an applicant who wishes to appeal against a CFI judge’s refusal to grant leave to apply for judicial review, which is an interlocutory order, has to observe the time limits for appeal under Order 53, rule 3(4) of the Rules of the High Court which allows 14 days. Where the applicant is out of time to appeal against a judge’s refusal to grant leave to apply for judicial review, an extension of time may be granted by a judge of the Court of First Instance under Order 59, rule 2B(6). The court is required to consider (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of success in the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted[1]. An extension of time will not be granted unless there is a real prospect of success[2].

5.  In order to obtain that leave, an application must be made promptly and it must be supported by an affirmation or affidavit deposing to any facts relied upon by the applicant and giving a full account of and explanation for the whole of the delay since time expired.

6.  Whilst the granting of an extension of time is entirely within the discretion of the court, the applicant is required to explain the reasons for his delay as this forms part of the consideration of whether there is good reason to allow an extension of time. The applicant stated he did not receive the Order within a reasonable time period but gave no reason within his Affidavit as to why that was the case. The Court file suggests that it was properly served upon the address given to the Immigration Department at that time. It is not the same address the applicant uses today. The applicant did not update his current address with the Court. The applicant maintains that he only learnt of the refusal of leave when he had a meeting with his case officer. He accepts it was his fault that we did not have his current address. It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner[3]. The consequences of any delay arising from failing to do so will fall upon the litigant[4].

7.  The Court is nevertheless required to examine whether there is any merit in the applicant’s appeal[5]. Whether there is any such merit will depend upon well‑established legal principles[6] including the fact that the Court in judicial review is not to provide a further avenue of appeal on the merits of the underlying claim. The applicant accepts he has no grounds of appeal.

8.  The applicant has now been in Hong Kong since 2014. He has been interacting with various government agencies since that date. The explanation he has offered to this Court, as to why he did not receive the order is not acceptable.

9.  In any event, I have considered his underlying application. It has no merit as explained in the initial refusal of leave. There were grounds of review but they were generic and reflect the fact that they had been copied from other papers received by this Court, which he accepts. The greater part of the grounds were inapplicable to the applicant’s situation as indicated at paragraphs 9-11 therein. Further, there was no complaint before the Court as to the decision to refuse leave. The applicant merely wishes the Court of Appeal to consider his situation afresh. He accepts it is a civil debt which he cannot repay. Having considered the length of delay, reason for the delay and underlying merits of his application, it would not be in the interest of justice to grant an extension of time in all the circumstances of this case.

10.  The applicant’s summons dated 25 July 2022 be dismissed.