RE ROBERT ADJAGBA

HCAL 872/2017

[2019] HKCFI 191

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 872 OF 2017

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D E C I S I O N

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1.  On 7 September 2018 I refused to grant leave to the applicant toapply for judicial review of the decision of the Torture Claims Appeal Board(“the Board”) in dismissing his appeal/petition regarding his non-refoulement claim upon finding none of the grounds put forward by him as reasonably arguable or with any prospect of success in his intended application.

2.  The applicant now by a summons issued on 22 October 2018 seeks leave to appeal against that decision out of time, as the 14-day period for him to lodge his appeal under Order 53, rule 3(4) of the Rules of the High Court, Cap 4A expired on 21 September 2018, and hence he was late by about one month.

3.  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) the length of the delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

4.  As noted the applicant’s delay was for one month for which he explained in his supporting affirmation of the same date that he had been going through severe fever due to weather changes until 19 October 2018 when he felt better and was only then able to prepare the necessary documents.  Whilst a delay of one month may not normally appear inordinate, when put in the context of the applicant’s alleged health reason which is unsubstantiated and lacks particulars, it does sound hollow to me in the circumstances of the applicant’s case, and I do not accept it as a good reason for his delay.

5.  As for the prospect of his intended appeal, the applicant in his affirmation put forward as his sole ground of appeal the “Latest Developments in Nigeria” of alleged attacks and killings of Christians by government sponsored Fulani herdsmen and the terrorist group Boko Haram in his country of residence in Nigeria that he claims would put his life in danger if he is refouled to Nigeria.

6.  These are however entirely new arguments which are fact- and evidence-‌sensitive which have never been raised or canvassed either before the Director of Immigration or the Board, or before this Court for which leave has never been sought within time, as he conceded at the hearing, and which are unsubstantiated and lack particulars.  It is accordingly a ground which the Court of Appeal is unlikely to entertain, and in the absence of any other error in that decision which the applicant was able to identify, I do not see any prospect of success in his intended appeal.

7.  In the premises it would be futile to extend time for what appears to me a hopeless appeal.  I therefore refuse his application for leave to appeal out of time, and dismiss his summons accordingly.