RE NJOKU DESMOND OZOEMENA

HCAL 298/2018

[2019] HKCFI 2196

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 298 OF 2018

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DECISION

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1.  On 17 June 2019 I refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal regarding his non-refoulement claim upon finding none of the grounds put forward by him reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in the process before the Board or in its decision, and that there was no reasonable prospect of success in his intended application.

2.  The applicant now by a summons dated 5 July 2019 seeks leave to appeal against that decision out of time, as the 14-day period for him to file his appeal under Order 53, rule 3(4) of the Rules of the High Court, Cap 4A ended on 1 July 2019, and hence he was late by four days with his intended appeal. 

3.  In considering whether to extend time for appealing against a decision refusing leave to appeal for judicial review, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.  In the applicant’s case, he was late with his intended appeal by only four days, for which he explained that he only received the decision from the court on 26 June 2019, and by the time he managed to get help from his friend to prepare his application, he was already out of time. A delay of four days cannot, on any view, be regarded as serious or significant, and I propose to focus on the merit, if any, of his intended appeal. 

5.  However, the applicant did not either in his summons or affirmation provide any draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be argued that the decision was unfair or unreasonable, and at the hearing of his summons he conceded that he is unable to find any error or mistake in the decision, but that as his life would still be in danger in his home country, he cannot yet go home.  As such and in the absence of any errors in the decision being clearly and properly identified by the applicant, I do not see any prospect of success in his intended appeal. 

6.  In the premises, it would be futile to extend time for what appears to be a hopeless appeal.  Accordingly I refuse his application for leave to appeal out of time, and dismiss the applicant’s summons.