RE JATTA OMAR

CAMP 30/2021

[2021] HKCA 1058

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 30 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 554 OF 2018)

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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 4 April 2018, the applicant issued his application for leave for judicial review by Form 86.  

1.2  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’)  dated 20 February 2018 dismissing his appeal against the decision of the Director of Immigration (‘the Director’)  dated 29 May 2017 rejecting his non-refoulement claim.  The application was brought within time.

1.3  On 17 August 2020, Deputy High Court Judge Bruno Chan dismissed the applicant’s application. 

1.4  The applicant had 14 days to appeal against the decision.  Being out of time to appeal, the applicant took out an application on 23 September 2020 before the Judge requesting essentially for an extension of time to appeal.  The Judge on 14 January 2021 rejected the applicant’s application for an extension of time to appeal. 

1.5  On 25 January 2021, the applicant issued a summons stating that he wanted to challenge the decision of 14 January 2021, but we shall take it to be his application for extension of time to appeal the decision of 17 August 2020.  For an explanation of the procedural provisions engaged, see : Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] to [8].  Although the applicant lodged his written submission on 9 April 2021 which is one day late contrary to the directions of the Registrar of Civil Appeals as contained in a letter dated 25 March 2021, we will admit his written submission.

1.6  Under Order 59, rule 14A(1)  of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application without an oral hearing.  Having considered the applicant’s summons, affirmation and written submission, 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 Gambia national.  He came into Hong Kong on 24 July 2014 as a visitor and he overstayed.  He subsequently raised a non-refoulement claim on 14 November 2014 based on his fear that he would be harmed or killed by the government of Gambia.  The background is set out in [2] and [3] of the Judge’s decision of 17 August 2020.

3)  The Director’s Decision

3.  The Director decided against the applicant’s non-refoulement claim on 29 May 2017.  The Decision covered Bill of Rights (‘BOR’)  Article 3 (torture/inhuman treatment)  risk, Bill of Rights (‘BOR’)  Article 2 (right to life)  risk, as well as other statutory and convention rights against torture and persecution.

4)  The Board’s Decision

4.  The applicant appealed against the Director’s Decision to the Board on 8 June 2017.  An oral hearing was conducted on 19 October 2017 for the Board’s assessment of all applicable grounds.  The Board dismissed the applicant’s appeal and affirmed the decision of the Director.  In gist, the Board did not accept that the applicant’s failure to honour a sponsorship agreement under which he obtained his teaching qualification or his role as an electoral officer would lead to adverse consequences from the Gambia government.  The evidence that the applicant provided did not tie in with threats from the government.  The fact that the applicant was able to depart Gambia with his passport shows that the government was not interested in the applicant.  The applicant failed to prove his case on all applicable grounds and the Director’s Decision was confirmed.

5)  Decisions of the Judge

5.1  In his decision dated 17 August 2020, the Judge held that the applicant provided no grounds in his Form 86 nor in his supporting affirmation.  No error of the Board was shown.

5.2  In his decision dated 14 January 2021, the Judge held that the applicant failed to provide good reason for his delay in appealing his decision.  There was no identification of any error in his decision.  

6)  Legal principles

6.  In 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), 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.

7)  Analysis

(1)  Length of delay and reasons for the delay

7.1  The applicant was late when he filed the summons in the lower court for extension of time to appeal.  The applicant should have been nine days late instead of 23 days late (as held by the Judge)  since August 2020 was court vacation and time should not have been counted.  Ignorance of the law was no excuse.  The Judge was correct to state that the Court record showed that the decision was sent to the applicant’s last known address without being returned through undelivered post.  There was no good reason for his delay.

(2)  Prospect of the intended appeal

7.2  More importantly, in our judgment, the applicant does not have any prospect of success in his intended appeal.

7.3  In the applicant’s supporting affirmation, he simply stated that he was late because he received the letter from High Court late.

7.4  In the applicant’s written submissions, he stated that he did not receive the letter from High Court.  He complained that he was concerned with safety in returning to Gambia. He said that the society was permeated with fear.  He stated that violation of human rights was commonplace.

7.5  The focus of an appeal in this Court is the correctness of the decision of the Judge.  Since the applicant has not identified any error of law or procedural unfairness in the decision of the Judge, the intended appeal cannot have any prospect of success.

8)  Disposition

8.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 25 January 2021.