RE TIJAN CHONGAN

CAMP 212/2019

[2020] HKCA 155

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 212 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 1134 OF 2017)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

1)  Renewed application for extension of time to appeal

1.1  On 19 December 2018, Deputy High Court Judge K.W. Lung dismissed the applicant’s application for leave for judicial review (‘Decision of the Judge’).

1.2  The applicant was entitled to appeal against the Judge’s refusal as of right.  But as he did not do so within the 14-day period specified by law, he has to obtain an order for extension of time to appeal.  Being about 4 months out of time, the applicant issued an application on 16 May 2019 before the Judge requesting essentially for an extension of time to appeal.  The Judge on 1 August 2019 rejected the applicant’s application (‘Extension of Time Decision’).

1.3  On 30 August 2019, the applicant by summons renewed his application for extension of time to appeal to this Court.  For an explanation of the procedural provisions engaged, see : Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at paragraphs 3 to 8.

1.4  Under Order 59, rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application like the present one without an oral hearing.  Having considered the summons and the affirmation filed, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2)  Factual background

2.  Briefly stated, the applicant is a national of Gambia.  He entered Hong Kong legally but overstayed.  He surrendered himself to the Immigration Department.  He subsequently raised a non‑refoulement claim based on his fear that he would be harmed or killed by the people of the National Intelligence Agency because of the embezzlement and corruption case of his‑brother.

3)  The Director’s Decision and the Director’s Further Decision

3.1  The Director decided against the applicant’s non‑refoulement claim on 6 November 2015.  The Decision covered Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) risk, persecution risk and torture risk.

3.2  By a Further Decision of the Director dated 30 March 2017, the Director also assessed BOR Article 2 (right to life) risk in respect of the applicant and decided against the applicant.

4)  The Board’s Decision

4.  The applicant appealed against the Director’s Decision to the Board on 18 November 2015.  An oral hearing was conducted.  The Board dismissed the applicant’s appeal and gave detailed reasons for its decision.  

5)  Decision of the Judge and Extension of Time Decision

5.1  In the Decision of the Judge, the Judge held that most of the applicant’s grounds in support of judicial review were bare allegations without facts or particulars.   

5.2  In the Extension of Time Decision, the Judge held that the applicant failed to identify reasons that he has a realistic prospect of success in the proposed appeal or in what respect the Court committed any error.  He held that there was no reasonable prospect of success in the applicant’s intended appeal.

6)  Legal principles

6.  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)  Length of the delay;

2)  Reasons for the delay;

3)  Prospect of the intended appeal;

4)  Prejudice to the putative respondent if extension of time was granted.

See Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134 and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22 January 2016).

7)  Analysis

(1)  Length of delay and reasons for the delay

7.1  The applicant was more than four months late when he filed summons in the court below for extension of time to appeal.  The Judge held that, in any event, there was no merit in the applicant’s application.  

7.2  In our view, the length of delay for his first extension of time to appeal application was not insubstantial. Therefore, the intended appeal must satisfy real prospect of success before an extension of time will be granted: Re Ansar Muhammad [2018] HKCA 227.

(2)  Prospect of the intended appeal

7.3  In our judgment, the applicant does not meet that threshold.  Having considered the applicant’s materials, we are of the view that the intended appeal of the applicant has no prospect of success.

7.4  The Judge had considered and rejected the grounds relied upon by the applicant for judicial review.  The applicant merely stated in his summons that he sought leave because there were procedural irregularities without providing details.  This is a bare allegation unsupported by reason or evidence.  

7.5  The content of the applicant’s supporting affirmation is generally undecipherable.  Trying our best, the applicant seemed to be saying that there are good grounds of appeal, yet he did not specifically say what they were.  He stated that he was unaware of the rules.  Ignorance has never been an excuse for not knowing the law.

7.6  The applicant lodged with the Court of Appeal his written submission on 21 October 2019 and two further letters in the same terms on 29 October 2019.  By Order of the Registrar of Civil Appeals dated 23 September 2019, it was ordered that unless the applicant lodges written submissions by 9 October 2019 by 4:00 pm, he will be debarred from doing so onwards, and shall be deemed to be relying only on representations made in the summons and supporting affirmation filed on 30 August 2019.

7.7  In any event, the applicant’s written submission contained general principles of non-refoulement without detailing how those principles apply to his case.  The applicant said in the letters that his half‑brother is still missing.  If this is intended to be relied upon as a new development then the proper channel to deal with this is by the mechanism under section 37ZO of the Immigration Ordinance (Cap. 115).

7.8  He has not identified any error in the Decision of the Judge.  We are of the view that the intended appeal does not have any prospect of success.

8)  Disposition

8.  As the intended appeal is unarguable, it will be futile to grant any extension of time.  Accordingly, we will dismiss the applicant’s summons filed on 30 August 2019.