RE SOUMANA ABDOULMAJID

CAMP 123/2018

[2018] HKCA 863

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 123 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 478 OF 2017)

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J U D G M E N T

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Hon Yeung Ag CJHC (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the Decision of Deputy High Court Judge Woodcock (“the Judge”) given on 11 May 2018 refusing leave to the applicant to apply for judicial review.  The intended judicial review was against the decisions of the Director of Immigration dated 8 April 2016 and 9 January 2017 rejecting the applicant’s non-refoulement protection claim.

2.  On 16 August 2018, the Registrar of Civil Appeals directed that unless the applicant lodged his written submissions by 3 September 2018, he would be debarred from lodging any submissions in support of his application for extension of time.  Notwithstanding the said direction, the applicant did not lodge any written submission by the deadline.  The Court therefore proceed on the basis that he does not intend to lodge any submission and we process the application on the basis of materials already lodged.

3.  Having reviewed the materials before us, we consider it appropriate to determine the application without a hearing pursuant to Order 59 rule 2A(5)(a) of The Rules of the High Court (Cap 4A).

Background

4.  The applicant is a Nigerian national.  He arrived in Hong Kong on 14 October 2012 and was permitted to remain as a visitor for 14 days until 28 October 2012. He overstayed since 29 October 2012 and was arrested by police on 10 September 2013.  He was sentenced to 2 months’ imprisonment suspended for 3 years.  On 1 November 2013, he lodged a non-refoulement claim.

5.  The applicant’s claim was based on his fear that he would be harmed or even killed by his uncle in Nigeria because the applicant refused to give him 2.5 million Naira after selling his livestock business which he took over from his father upon his death in April 2012.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 916.

6.  By a Notice of Decision dated 8 April 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

7.  By a Notice of Further Decision dated 9 January 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk[4], and decided against him.

8.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 19 January 2017, at which it considered both Decisions of the Director, the Board dismissed the appeal on 14 June 2017 (“Board’s Decision”).  The Board at [52] – [54] of its Decision found that the account of events from the applicant varied so significantly that his credibility was undermined.  The Board did not find the applicant a credible, truthful and reliable witness and concluded that the risk of harm he might face if refouled would be very low : see [60] of the Board’s decision.  The Board confirmed the decisions of the Director and rejected the applicant’s non-refoulement protection claim under all applicable grounds.

The deputy judge’s decision

9.  The applicant filed a Form 86 on 3 August 2017 which contained no ground for seeking relief.  In the supporting affirmation the applicant only exhibited an record of interview with an immigration officer dated 26 November 2015 and his non-refoulement claim form dated 15 October 2015 and did not set out any ground for judicial review in it.

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the Judge refused to give leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [10] to [14] of the CALL-1 Form:

“Leave to apply for judicial review

10. The applicant has named the Director as the proposed respondent not the adjudicator of the TCAB in his Form 86. In his affirmation the applicant exhibits an interview dated 26 November 2015 with an Immigration officer as well as his non-refoulement claim form. He does not set out any grounds in it.

11. The applicant utilised his channel of appealing the Director’s decision to the TCAB. The TCAB treated the appeal/petition as a de novo hearing or rehearing. The TCAB would have considered the Director’s decision and ensured there were no errors as it treated the applicant’s appeal/petition as a rehearing. The applicant has not specified or particularised what grounds he seeks to judicial review the Director and not the TCAB. It would have to be a point or ground of appeal that was not raised with the TCAB or addressed by the TCAB. To seek to judicial review the Director here is in my view, not the right course of action to take; there is no room for a judicial review of his decision unless in very specific circumstances. Those circumstances do not arise here.

12. In any event, even if I am wrong, there are no grounds against either the Director or the TCAB. In the oral hearing that was arranged to afford the applicant a chance to put forward grounds, the applicant had nothing to say except that his problems still existed in Nigeria. He said that the country was not stable, Christians were being slaughtered and the president was a Muslim. He said there was no change from before and he would return home when things improved. These were not grounds with any merit against either decision-makers.

13. Despite the lack of grounds, I have considered with rigourous examination and anxious scrutiny the decisions of both the adjudicator of the TCAB and the Director. I do not find any error of law by either decision-makers. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.

14. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

Application for extension of time to appeal and grounds for appeal

11.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  The appeal period expired on 25 May 2018.  He failed to do so.  By a summons dated 19 July 2018, he applied for an extension of time to appeal.  His application for extension of time is supported by an affirmation dated 19 July 2018 in which he provided the following:

“ (1) I want to appeal the decision of Deputy High Court Judge Woodcock dated the 11^th May 2018 for not granting me Leave to judicial review.

(2) This decision is unfair and unreasonable.

(3) The reason I did not appeal in time was because I was not aware that I have to appeal in certain period of time.  After seeking legal advice, I came to know that I have (to) appeal in a specific period of time.  Therefore, I seek leave to appeal out of time.”

12.  The applicant did not produce any draft notice of appeal.

Discussion

13.  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 delay; (2) the reason for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if extension of time was granted.

14.  In this case, the applicant was late for 8 weeks and the length of delay is substantial.  The applicant explained that he was not aware of the time limit for appeal.  It is trite that ignorance of the law is no excuse. The applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  We do not find the long delay to be excusable.

15.  In the absence of a cogent explanation for the delay, extension of time should not be granted unless the applicant has a real prospect of success in the intended appeal: see Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd & Anor [2001] 1 HKC 125; Wong Yuk Man v Ng Leung Sing & Anor HCMP 3217 of 2015, 22 January 2016.  The same principle applies in non-refoulement cases: see Re Akram Mohammad HCMP 1601 of 2016, 10 August 2016; Re Khandakar Ali Muzaman HCMP 2452 of 2016, 22 November 2016. 

16.  The applicant did not include any draft notice of appeal in his documents filed with the court.  He just set out in his affirmation that the Judge’s decision was unfair and unreasonable.  This is a vague contention without particulars and substance.  In any event, after reviewing the materials placed before the Judge, we agree with the Judge that the applicant’s claims are not reasonably arguable and the intended judicial review has no prospect of success. 

17.  The applicant has not put forward any viable ground for us to reverse the Judge’s decision.  In our judgment, the intended appeal is doomed to fail. 

18.  For these reasons, we would not grant an extension of time to the applicant to bring a hopeless appeal.  The summons dated 19 July 2018 is dismissed accordingly.

19.  We are of the view that the application is totally devoid of merits.  Pursuant to Order 59 rule 2A(8) of The Rules of the High Court, we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.