Umenwa Uchenna Nichodemus v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 788/2017

[2019] HKCFI 284

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 788 OF 2017

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D E C I S I O N

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Introduction

1.This is an application dated 5 October 2018 seeking leave to appeal out of time from my decision of 5 September 2018 refusing leave to apply for judicial review.  The applicant had 14 days in which to apply to appeal that decision.  He did not do so.  He now requires leave to extend time to appeal against that order.  The applicant is unrepresented and attended court for the hearing with the assistance of an interpreter. 

Procedural background

2.The applicant is a claimant under Article 3 of the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment.  He entered Hong Kong legally on 27 November 2010 and was arrested by the police on 21 September 2015 for overstaying.  He finally submitted a non‑refoulement (“NRF”) claim on 21 December 2015 and was interviewed by the Director of Immigration (“the Director”) on 16 March 2016.  The Director dismissed his claim under all heads, by Notices of Decision on 29 August 2016 and 6 June 2017.  He appealed those Decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Evan Ruth (“the Adjudicator”), dealt with the matter on the papers and dismissed his appeal on 19 September 2017.

3.The applicant filed a notice of application on a Form 86 dated 19 October 2017, seeking leave to apply for judicial review of the decisions of the Director and Adjudicator and did not request an oral hearing, and therefore the matter was considered on the papers.  His application for leave to apply for judicial review was refused on 5 September 2018 for the reasons given therein.  He had 14 days from that date to appeal that decision, which would have expired on 19 September 2018.  By way of summons dated 5 October 2018, he seeks leave to appeal out of time.

4.An applicant does not require leave to appeal against a CFI judge’s refusal to grant leave to apply for judicial review (Order 59, rule 21(1)(g)). The applicant may appeal as of right.  However, an applicant who wishes to appeal against a CFI judge’s refusal to grant leave to apply for judicial review, which is an interlocutory order, has to observe the time limits for appeal under Order 59, rule 2B which allows 14 days.  Where the applicant is out of time to appeal against a judge’s refusal to grant leave to apply for judicial review, an extension of time may be granted by a judge of the Court of First Instance under Order 59 rule 15.

5.In order to obtain that leave, an application must be made promptly and it must be supported by an affirmation or affidavit deposing to any facts relied upon by the applicant and giving a full account of, and explanation for, the whole of the delay since time expired.  The granting of an extension of time is entirely within the discretion of the court.  The applicant is required to explain the reasons for his delay.  The court will look at those reasons as well as the length of the delay and the underlying merits of the applicant’s appeal in order to ensure that the judicial process is applied fairly and with due regard to wasting court time.  

6.The role of the Court of Appeal in judicial review is not to provide a further avenue of appeal.  The primary decision makers were the Director and the Adjudicator.  The Court of Appeal will not intervene unless the appellant can show that there has been an error of law or procedural unfairness or irrationality in the decision of the Director or the Adjudicator or of the judge.  Where there is a refusal of leave by a judge of the Court of First instance, an appeal from that refusal is not an opportunity to repeat any arguments advanced and rejected by the judge, nor it is an opportunity to raise argument not placed before the judge.  In an appeal against refusal of leave, the Court of Appeal will only examine the decision of the judge in the light of the grounds advanced by the applicant.

7.Before me, the applicant at first maintained that he had not understood the contents of the Call‑1 form until time had already lapsed because he could not read English and had needed it translated.  It later became clear that the applicant reads and writes rudimentary English and has a basic understanding of the language but perhaps not the nuances of the law.  In any event, it became clear that he had approached a number of people within the time period of 14 days, to discuss the document and had attended at the court building on 18 September 2018, but had not completed the appropriate documentation to appeal because he had forgotten a piece of paper. He could not describe the contents of the piece of paper, other than to say that it was a document prepared for him by someone else.  He could not explain why he had not returned to court to complete his application to appeal on the next working day or shortly thereafter.  Two weeks then elapsed, by which time he was out of time to appeal.  He now maintains this was because he could not work and had no money and could not instruct a lawyer.

8.The applicant could not assist the court as to his intended grounds of appeal.  He repeatedly asked the court for mercy.  He accepts that he would ask the same of the Court of Appeal.  He has not sought to advance any argument suitable for the consideration of the Court of Appeal.  There has been no complaint raised against the decision of this court.  The Court of Appeal would only reverse the decision of this court if the applicant can demonstrate that there were errors in law; that this court failed to take into account relevant matters; or the decision was otherwise plainly wrong.  He has not shown this to be the case and, indeed, does not suggest that this is the case, merely that he does not wish to return to Nigeria for the reasons given elsewhere.

Conclusion

9.The applicant has now been in Hong Kong since 2010.  He made no claim for asylum until his arrest in 2015.  He has been interacting with various government agencies since 2015.  The explanation he has offered to this court for his delay, is not acceptable.  I have nevertheless considered his underlying application and any reasons he may have on appeal from my refusal of leave.  His underlying claim had no merit, as explained at some length in the initial refusal of leave.  There were no grounds of review, just as he has no grounds of appeal.  There has been no complaint before the court in respect of the decision to refuse leave.  The applicant merely wishes the Court of Appeal to consider his situation afresh as he is unhappy with the decision of this court and does not want to return to his own country.  Having considered the length of delay, even though minimal, the reason for the delay and, more importantly the underlying merits of his application both below and on appeal, it would not be in the interest of justice to grant an extension of time in all the circumstances of this case.

10.The applicant’s summons dated 5 October 2018 be dismissed.

The applicant appeared in person.