RE FATAJO ABDOULIE

CAMP 228/2019

[2020] HKCA 41

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 228 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 60 OF 2018)

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JUDGMENT

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Hon Yuen JA (giving the Judgment of the Court):

1.  By summons filed in CAMP228/2019 in the Court of Appeal on 16 September 2019, the applicant applied for an extension of time to appeal the order of Campbell-Moffat J (“the Judge”) dated 24 April 2019 refusing leave to start judicial review proceedings concerning his non-refoulement claim (“the JR Decision”). The applicant had taken out a summons in HCAL 60/2018 on 5 July 2019 for an extension of time to appeal. That summons was dismissed by the Judge on 14 August 2019 (“the Extension Decision”).

2.  Under Order 53 rule 3(4) Rules of the High Court, where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.  The deadline was therefore 8 May 2019. The applicant did not lodge an appeal in time.      

3.  It was not until nearly 2 months later, on 5 July 2019 that the applicant applied to the Judge for an extension of time to appeal the JR Decision. That culminated in the Extension Decision. 

4.  In effect, the present application is for this court to extend time to appeal the JR Decision.

5.  Under Order 59 rule 14A(1) Rules of the High Court, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.

Legal Principles

6.  In considering whether to extend time for appealing, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.

Discussion

7.  As for (1), the delay was of 2 months.  In the context, it is a serious delay. 

8.  As for (2), the reasons for the delay, the applicant said in his affirmation of 16 September 2019 that he “was late for Appeal Because Address changed”.  However, it is clear on his own case that he had failed to inform the court of his change of address.  As such, there is no satisfactory reason for the delay.       

9.  However, the most important consideration is (3) the prospect of success of the intended appeal.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (“the TCAB”) dated 8 December 2017 (“the TCAB’s Decision”) dismissing his appeal against the decision of the Director of Immigration of 15 May 2017 (“the Director’s Decision”).

10.  The brief background is as follows.  The applicant alleges that he is the son of his father’s second wife and as such entitled to an inheritance of land from his father upon his death, but his father’s first wife and her sons were hostile to him.  The sons assaulted him and told him to leave the country otherwise he would be killed.  He therefore came to Hong Kong. 

11.  The applicant’s allegations in support of his claim have been set out in detail in the TCAB’s Decision and in gist in the Judge’s Decision. 

12.  By the Director’s Decision, the Director rejected the applicant’s claim on the grounds of BOR 3 risk[1], persecution risk[2], torture risk[3], and BOR 2 risk[4].

13.  The applicant appealed to the TCAB which rejected his claim as there were significant inconsistencies in timing in the accounts given by the applicant in his Non-refoulement Claim Form, his interview with the immigration officer and before the Board [56] - [64].  Further, he alleged that he had already told his half-brothers that he had no interest in the father’s land and they had occupied it without challenge for at least 7 years [73].  The Board did not consider the applicant’s account credible.    

Application for leave to start judicial review

14.  On 11 January 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the TCAB’s Decision.  However, no grounds were advanced. 

The JR Decision

15.  As mentioned earlier, the Judge refused leave for reasons set out in [10] - [11] of the Form CALL-1 ([2019] HKCFI 485):

“10.  There were no grounds of review.  The applicant seeks a re-hearing of his appeal.  He has not complained of any procedural irregularity, unfairness or unreasonableness.  The applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

11.  Despite the fact that the applicant did not submit any grounds of review, I have considered the papers carefully.  I have not found any error of law or procedure.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state his case and enquired into that case appropriately.  There is no criticism of his determination, which was open to him on the facts and eminently reasonable.  It is noted that even if the applicant’s case had been taken at its highest, he would have failed to establish the burden placed upon him.”

No grounds of appeal to the Court of Appeal

16.  On 16 September 2019, the applicant filed a summons in this court, but he has advanced no grounds of appeal from the JR Decision.  This is despite the fact that in the Extension Decision, the Judge had explained to him that it was important to consider whether there were any merits in an appeal [6]

17.  Given that the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 16 September 2019.

18.  Since the present application is totally without merit, we further make an order under Order 59 rule 2A(8) Rules of the High Court that the applicant may not request our determination to be reconsidered at an oral hearing.