JUM ALIE v. DIRECTOR OF IMMIGRATION

CAMP 251/2022

[2022] HKCA 1807

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 251 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1086 OF 2017)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 12 August 2020, Campbell‑Moffat J refused to grant leave for the applicant to seek judicial review against the decision of the Director of Immigration (“the Director”) concerning his non-refoulement claim[1].

2.  On 15 October 2020, the applicant filed a summons for extension of time to appeal against that decision at the Court of First Instance. The applicant’s summons was dismissed by the judge on 30 April 2021[2].

3.  On 14 July 2022, the applicant filed a renewed application with the Court of Appeal for leave to appeal out of time.

4.  The applicant is a national of Gambia. He is 31 years old. He entered Hong Kong on 8 October 2014 as a visitor and subsequently overstayed. He surrendered to the Immigration Department on 7 January 2015. On 6 February 2015, he raised a non-refoulement claim on the basis that he will be harmed by the Gambian government because he was a part of the coup plot.

The decisions of the Director and the Board

5.  By a Notice of Decision dated 4 July 2016, the Director rejected the applicant’s claim on torture risk[3], BOR 3 risk[4] and persecution risk[5]. On 11 July 2016, the applicant appealed against the Director’s decision to the Torture Claims Appeal Board (“the Board”). The appeal was dismissed by the Board on 4 October 2016.

6.  By a Notice of Further Decision dated 27 October 2016, the Director rejected the applicant’s claim on BOR 2 risk[6]. The applicant’s appeal against the Director’s further decision was received by the Board out of time on 21 November 2016. The Board refused the late filing of the appeal on 6 December 2016.

7.  The applicant then applied for a subsequent claim on 19 December 2016. The Director considered that the applicant failed to show there has been significant change of circumstances since his previous claim was refused and rejected the request for subsequent claim on 16 January 2017.

The intended judicial review

8.  The applicant had previously applied for leave to seek judicial review concerning his non-refoulement claim under HCAL 188/2017. The leave application was dismissed by Au J (as he then was) on 19 May 2017.

9.  The applicant filed another Form 86 in HCAL1086/2017 to seek judicial review concerning his non-refoulement claim again on 15 December 2017.

The judge’s decision

10.  Campbell‑Moffat J dealt with the application on paper. The applicant did not submit any grounds for his intended judicial review. The judge reviewed the papers and considered there is no error of law or procedure and also no evidence of procedural unfairness or failure to adhere to a high standard of fairness. The judge held there is no realistic prospect of success in the applicant’s intended application for judicial review and dismissed the leave application on 12 August 2020.

Grounds of intended appeal

11.  The applicant did not put forward any grounds of appeal in the present application. He has also failed to lodge any written submissions.

Analysis and disposition

12.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

13.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The order was made on 12 August 2020. The applicant was late by 1.5 months when he took out the summons for extension of time to appeal at the court below on 15 October 2020, exclusive of the court’s summer vacation in August.

14.  Pursuant to Order 59, rule 14(3) of the Rules of the High Court (Cap 4A), where an ex parte application has been refused by the court below, an application for a similar purpose may be made to the Court of Appeal ex parte within 7 days after the date of the refusal. The applicant’s application for extension of time to appeal was refused by the court below on 30 April 2021. He was late for more than 13 months when he made the present application to the Court of Appeal on 14 July 2022. The applicant explained that by the time he received the Call-1 form and judgment, he had already missed the deadline of appeal.

15.  The applicant stated his address in the Form 86 as the Castle Peak Immigration Centre and did not provide any updated address to the court before the handing down of the Call-1 Form. The Immigration Department provided the applicant’s last reported address to the court in August 2020 and the court sent the Call-1 Form to the applicant by post to that address on 12 August 2020. The mail was unclaimed and returned to the court subsequently.

16.  The applicant provided another address in his previous application for extension of time to the court and the court sent the judgment dated 30 April 2021 to the applicant by post to that address. The mail was also unclaimed and returned to the court. The applicant provided a new address to the court in the present application but he has not filed any notice of change of address with the court previously.

17.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15). Hence, the applicant’s delay is inexcusable. Under these circumstances, he must show a real prospect of success on merits: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

18.  The applicant has not provided any grounds of appeal in the present application. He failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

19.  As there is no prospect of success in his intended appeal, we decline to exercise our discretion to extend time to appeal against the decision of 12 August 2020 and dismiss the summons filed on 14 July 2022.