Nwachukwu Iyke Uzoma v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 928/2017

[2019] HKCFI 734

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 928 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 20 November 2018 for appeal from my decision of 2 November 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.  

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 6 January 2012. He submitted a Non‑refoulement Claim Form on 3 March 2017 and was interviewed by the Director of Immigration (“the Director”) on 28 March 2017.  The Director dismissed his claim under all heads, by Notice of Decision on 21 April 2017.  He appealed that Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Fraser Syme (“the Adjudicator”), heard him on 16 August 2017.  The Adjudicator refused his appeal on 25 August 2017.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 22 November 2017.  He did not request an oral hearing.  The matter was therefore considered on the papers.  His application for leave to apply for judicial review was refused on 2 November 2018.  He had 14 days from that date to appeal the decision, which would have expired on 16 November 2018.  By way of summons dated 20 November 2018, he now 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.  Whilst 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.

6.The applicant appeared in person and was proficient in English.  In his affidavit dated 20 November 2018, the applicant did not explain the delay as he sought to rely upon his underlying refugee claim.  He sought a re‑hearing of his case based upon the continuing situation in Nigeria and his marriage to a resident of Hong Kong.  Upon questioning, he explained that the four‑day delay was as a result of his lack of knowledge of the system and the need to seek advice.  He explained that he had not come to Hong Kong in order to marry and that he had fled Nigeria out of fear but that his very quick marriage shortly after arrival was a marriage of convenience although the couple loved each other.  That relationship did not last and he made a non-refoulement application after his divorce but then met and married his current wife after that and has an application for a dependant’s visa pending.  The applicant was encouraged to identify any complaint he may have against the adjudicator or this court but, fairly, could not do so.

Conclusion

7.The applicant has now been in Hong Kong since 2012. He has been interacting with various government agencies for the entirety of that period and accepts he received all necessary documents and notifications.  He is an intelligent man and proficient in English.  He was also married to a resident of Hong Kong, who is Chinese, at the time the Form Call-1 and Order were sent to him.  The reason this application is late is to be put entirely at his own door but it is understandable and was a very short delay.

8.As a result, I have considered his underlying application.  Unfortunately for him, it has no merit whatsoever as can be seen in the initial refusal of leave and underlying papers.  It is no surprise that it was unsuccessful.  There were no grounds of review before this court and none could be found.  He has no complaint now about the manner in which he was dealt with by the Adjudicator.  There is no actual complaint before this court as to the decision to refuse leave.  He has not advanced any grounds of appeal.  Having considered the length of delay, reason for the delay and, underlying merits of his application, it would not be in the interest of justice to grant an extension of time in all the circumstances of this case.

9.The applicant’s summons dated 20 November 2018 be dismissed.

The applicant appeared in person.