Udeh Dominic Onyemaechi v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 785/2017

[2019] HKCFI 1369

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 785 OF 2017

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D E C I S I O N

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Introduction

1.On 27 July 2018, this court refused an extension of time for leave to apply for judicial review. The applicant appealed that order (“the 1^st Order”) by way of summons filed on 10 August 2018, which was within time.  Having heard the applicant in person on 8 October 2018, the court granted him leave to appeal the 1^st Order subject to conditions.  The applicant complied with those conditions on 12 October 2018.  Leave to appeal was therefore granted by order of this court (“the 2^nd Order”) on 19 October 2018.  Unfortunately, the applicant did not progress that appeal.  By summons dated 31 January 2019, the applicant now seeks an extension of time to appeal.

2.In accordance with Order 59, rule 4(1)(a), the applicant had 7 days from 20 October 2018, in which to serve his notice of appeal pursuant to the 2^nd Order.  He did not do so. He now requires leave to extend time to appeal.  The applicant filed a summons in those terms on 31 January 2019 and attended court in person.

Procedural background

3.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 22 January 2008 and thereafter overstayed from 6 February 2008.  He was arrested on 19 October 2009 and, as a result of that arrest, submitted a non‑refoulement (“NRF”) claim by way of written representation on 23 October 2009.  His NRF claim form was submitted on 10 October 2014.  He was interviewed by the Director of Immigration (“the Director”) on 23 December 2014.  The Director dismissed his claim under all heads, by Notice of Decision on 5 January 2015 and by Notice of Further Decision on 26 October 2016.  He appealed those decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Yu Cheuk‑man (“the Adjudicator”), heard him on 12 December 2016.  The Adjudicator refused his appeal on 7 July 2017.

4.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 19 October 2017 but was late and no reason was given.  As such, he required an extension of time to apply for judicial review, which was refused for the reasons given in the Form CALL‑1.  The procedural history of his appeal to date is outlined at paras 1 to 2 above.

Current situation

5.Having not pursued his appeal within time, the applicant now requires leave to appeal out of time.  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 as this forms part of the consideration of whether there is good reason to allow an extension of time.  In his summons and affidavit in support dated 31 January 2019, he claims he did not receive the 2^nd Order until mid‑January 2019 but gives no further explanation.  The court file suggests that it was properly served upon the address given at that time, which is the same address the applicant used on the last occasion and uses today.  He tells the court that there are often difficulties with the delivery of his mail.  When he was asked for his address on the last occasion, he did not mention this issue.  He provides no other explanation for the delay.

Conclusion

6.The applicant has now been in Hong Kong since 2008.  He has been interacting with various government agencies for the entirety of that period and received all necessary documents and notifications.  He has not previously complained to the court that he has not received correspondence.  It was made clear to him on 8 October 2018 that proceedings in judicial review and in respect of appeal are time sensitive.  He knew he had a time limit to comply with the order of the court on that occasion and would have known that time would run from either the date of his meeting the conditions or some other date but he sat back and did nothing until January 2019.  He says he did not understand this.  The limited explanation he has given to the court for his most recent delay is not acceptable.

7.In any event, and in an effort to give the applicant the benefit of the doubt, I have considered his underlying application for judicial review and for appeal from the 1^st Order. The applicant is a Nigerian male who claims that he will be killed by a former business partner as a result of a dispute over money.  The applicant maintains that, in 2004, he was carrying a considerable amount of money belonging to his partner in a car when he was attacked and robbed by unknown men.  As a result of the attack, one person was killed and he was hospitalised.  He attempted to report the robbery (and murder) to the police but they required a bribe.  His partner demanded repayment and threatened to kill him.  He fled his home but his mother and sister were killed.  He fled to Lagos and thereafter to South Africa using a forged passport but obtained a true passport once in South Africa.  He came to Hong Kong in 2008 and overstayed.  Neither the Director, or the Adjudicator accepted this claim.  The Adjudicator went so far as to state he was disbelieved.  There were no grounds of review before this court.  As for grounds of appeal, there is no complaint before the court as to the decision to refuse an extension of time, nor any sufficient explanation now given for why he was late in his original application.  The applicant wishes the Court of Appeal to consider his situation afresh.

8.Having considered the length of the delay in progressing his appeal, the reason given for that delay and the underlying merits of his application both as to judicial review 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.

9.The applicant’s summons dated 31 January 2019 be dismissed.

The applicant appeared in person.