ABAYOMI BAMIDELE FAY v. SECRETARY FOR SECURITY AND ANOTHER

HCMP 3159/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 3159 OF 2016

(ON AN INTENDED APPEAL FROM HCAL NO. 60 OF 2009)

______________________

______________________

______________________

J U D G M E N T

______________________

Hon Poon JA (giving the judgment of the Court):

1.  This is the applicant’s application for extension of time to appeal against the order of Chow J dated 22 May 2015, dismissing his application for judicial review. It is opposed by the respondents.

2.  Having considered the parties’ submissions, we think the application can be disposed of without an oral hearing.  We now hand down our judgment.

3.  In an application such as the present, the court will usually consider:

(1) the length of the delay;

(2) the reasons for the delay;

(3) the merits of the proposed appeal; and

(4) the prejudice to the respondent.

4.  Chow J made the order on 22 May 2015. The applicant filed the present summons on 14 November 2016. There is a delay of some 17 months.  The delay is on any view serious and inordinate.

5.  In his affirmation filed in support of the present application dated 14 November 2016, the applicant asserted that after Chow J’s order, he immediately applied for and was granted legal aid.  He was told that a notice of appeal had already been filed on his behalf.  He therefore had acted under such misconception all along.  Presumably, according to the applicant, it was either the legal aid counsel handling his case or the solicitors assigned by the Legal Aid Department to him who had told him that a notice of appeal had been filed on his behalf when it is not the case.  We find such an assertion inherent incredible and have no hesitation to reject it.  We hold that the applicant has not given any credible explanation for the delay.

6.  In any event, we accept the respondents’ submissions at [11] to [13] of the written submissions dated 16 February 2017 that the intended appeal does not have any merits at all.

7.  Finally, we also accept that by reason of the matters as set out in [5] to [11] of the affirmation of Lau Chun Yan, an Immigration Officer, dated 30 November 2015, if extension were granted to the applicant to appeal out of time, it would be detrimental to effective immigration control in Hong Kong and the respondents would suffer prejudice accordingly.

8.  For the above reasons, we refuse the application.

9.  As the application is wholly without merit, we further make an order under Order 59, rule 2A(8), Cap 4A that no party may request our determination to be reconsidered at an oral hearing inter partes.