RE NWORIE BRIGHT NNANNA

HCAL 11/2018

   [2020] HKCFI 2309

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 11 OF 2018  

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D E C I S I O N

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1.  On 21 June 2019 I refused to extend time for the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing his appeal regarding his non-refoulement claim upon finding no good reason for his more than 5 months’ delay with his application, that 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 Director of Immigration or the Board or in their decisions, and that there was no reasonable prospect of success in his intended application.

2.  The Applicant now by a summons issued on 14 May 2020 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 High Court, Cap 4A ended on 5 July 2019, he was late by more than 10 months with his intended appeal. 

3.  In considering whether to extend time for appealing against a decision refusing leave to apply 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, a delay of more than 10 months must be considered as very substantial and excessive, for which he explained in his supporting affirmation that he was not aware of the rule requiring the filing of appeal within 14 days of the decision which he received while in custody of the Correctional Service Department, as he stated as follows:

“ I am the Applicant herein. I am presently detained by the ImmD authorities. The decision made by the High Court judge has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country. The decision relied on the Country of Origin information. Moreover, it’s not sufficient that I was a litigant in person, illiterate & unrepresented, thereby making me unaware of the rules regarding the 14-day time limit. I was in custody of Correctional Service Department when my leave to apply for Judicial Review was dismissed I humbly request the Court to allow my appeal out of time and give a chance to explain.”

5.  The Applicant however failed to appear at the hearing of his summons in order that he may explain or clarify as to when and why he was in custody, or to produce any corroborative documentary evidence in support of such claim, but even if true that he was indeed then in custody, and while accepting the resultant inconvenience and restrictions may contribute to some inevitable delay, they cannot in my view excuse such serious procedural breach of the Applicant with his application, nor can his claim of not being aware of the rule be accepted as any valid reason for the breach.  

6.  More importantly, nor did he in his summon or supporting affirmation provide any draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable, other than some broad and vague assertion that it was reached unfairly, as noted above, but without providing any particulars or elaboration as to how it was so.  As such and in the absence of any error in the decision being clearly and properly identified by the Applicant, 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 be a hopeless appeal.  Accordingly, I refuse his application for leave to appeal out of time, and dismiss his summons.