RE OFUKA BENEDICT SALLY

CAMP 115/2019

[2019] HKCA 1001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 115 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 985 of 2017)

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JUDGMENT

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Hon Chu JA (giving the Judgment of the Court):

1.  This is the applicant’s renewed application for leave to appeal out of time against the decision of Campbell-Moffat J (“the Judge”) given on 7 December 2018 dismissing his application for leave to apply for judicial review for being out of time. The applicant’s previous application for leave to appeal out of time was refused by the Judge on 21 May 2019.

2.  The applicant had filed an affidavit, and also lodged a written submission in support of his application.

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the summons and the affidavit filed by the applicant, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant is a Nigerian national.  He entered Hong Kong on 4 March 2008, and was given permission to remain as a visitor for 14 days.  He overstayed and was arrested by the police on 25 May 2009.  He raised a non-refoulement claim on 28 May 2009, based on his fear of being persecuted or killed by the Nigerian police and security service by reason of his involvement in the Niger Delta Awareness Movement of Agbor, a human right movement that seeks to overthrow the government. 

5.  By two decisions dated 5 May 2016 and 24 February 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim.  The first decision covered the torture risk[1], BOR 3 risk[2], and persecution risk[3] ground, and the second decision covered the BOR 2 risk[4] ground.  The applicant appealed the Director’s decisions to the Torture Claims Appeal Board (“the Board”).  After two hearings on 2 and 6 March 2017, the Board by a decision dated 26 July 2017 dismissed the appeal.

6.  Under Order 53 rule 4(1) of the Rules of the High Court, an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.  In the present case, the three months’ period began to run from 26 July 2017, the date the Board gave its decision.

7.  However, it was only on 30 November 2017 that the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision.  The delay was 35 days.  By the CALL-1 Form dated 7 December 2018, [2018] HKCFI 2270, the Judge dismissed the application for leave to apply for judicial review on the basis it was out of time.  The Judge had also considered whether extension of time should be granted.  She held that the applicant had given no reason for an extension to be granted.  Effectively, by her decision, the Judge had refused to extend the time for the applicant to apply for judicial review.

8.  The 14-day period[5] for the applicant to appeal the decision of the Judge expired on 21 December 2018. On 5 March 2019, the applicant filed a summons to apply for leave to appeal out of time.  On 21 May 2019, the Judge heard the application and dismissed it.  On 4 June 2019, the applicant filed a summons and an affidavit in this Court to renew his application for leave to appeal out of time.

9.  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 reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the 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, 22.01.2016). 

10.  By the time the applicant filed the summons in the lower court for leave to appeal out of time, he was late for about 2.3 months.  The delay was substantial.  The applicant’s explanation that he did not receive the Form CALL-1 was not accepted by the Judge.  However, what is more important is the prospect of the applicant’s intended appeal.  

11.  The principal point made by the applicant in the summons, affidavit and written submission is that his life would be in danger if he were to be refouled to Nigeria.  He further repeated the basis of his claim in the written submission.

12.  In our view, the applicant’s intended appeal is bound to fail.  Firstly, in Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419 at [29], [44] and [45], the Court of Appeal held that the decision to refuse to extend the time for applying for judicial review is interlocutory in nature, and that section 14AA of the High Court Ordinance, Cap. 4 applies.  Under section 14AA(1), no appeal shall lie to the Court of Appeal from an interlocutory judgment or order of the Court of First Instance unless leave to appeal has been granted.  As the Judge had on 21 May 2019 dismissed the applicant’s application, he had not been given leave to appeal. 

13.  Secondly, it is provided in Section 14AA(4) that leave to appeal should not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.  Other than asserting that his life would be in danger, the applicant has not stated any proposed ground for appeal in the summonses and affidavits before the Judge and before this Court.  There is no proper basis on which leave to appeal could have been granted.  We are in agreement with the Judge that leave to appeal out of time should not be granted.

14.  As the intended appeal is unarguable, it would be futile to give leave to appeal out of time.  Accordingly, we dismiss the applicant’s summons filed on 4 June 2019.

15.  Since the present application is totally without merit, we further make an order under Order 59 rule 2A(8) of the Rules of the High Court that the applicant may not request our determination to be reconsidered at an oral hearing.