Awolor Anthony Toyin v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 587/2017

[2019] HKCFI 1533

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 587 OF 2017

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Before: Deputy High Court Judge Woodcock in Chambers

Date of Hearing: 12 June 2019

Date of Decision: 24 June 2019

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D E C I S I O N

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1.This is an application for extension of time to appeal against my decision of 25 June 2018 refusing this applicant leave to apply for judicial review. The applicant may appeal as of right but has to observe the time limits to appeal. Pursuant to Order 53 rule 3(4), the applicant had 14 days in which to apply to the Court of Appeal to appeal that decision. He failed to do so. He now requires and seeks leave to extend time to appeal against that order. This application is dated 10 May 2019, which is over 11 months late. The applicant has filed an affirmation in support.

2.The applicant had filed a Form 86, a notice of application for leave to apply for judicial review on 5 September 2017. The intended judicial review was against the decision of the Torture Claims Appeal Board (“TCAB”) dated 11 August 2017 rejecting the applicant’s non‑refoulement protection claim.  The adjudicator of the TCAB rejected the applicant’s claim on the basis that he was not credible; he rejected it on the basis of credibility.

3.The applicant has been in Hong Kong since 28 December 2013 and overstayed his tourist visa before surrendering to the Immigration Department on 25 February 2014.  He then lodged his claim for non‑refoulement protection.

4.He requested a hearing of his application for leave to apply for judicial review and the hearing date was set down for 30 January 2018.  On the date of the hearing the applicant was absent.  He had previously written in to apply for an adjournment of that date because he wanted to wait for the result of his appeal against the refusal of the director of legal aid to provide legal aid for his application.  I refused the application to adjourn the hearing date.  The interpreter present telephoned the applicant’s mobile and the applicant gave two reasons for his absence, he said he thought his application to adjourn the hearing date had been successful and then he said he would not come to court even if given time to attend that same day because he had no money to travel from Jordan to the Court of First Instance.  Neither were reasonable explanations for his absence.

5.I reserved my decision and considered the merits of his application on the papers.  I set out the background to his claim in the Form CALL‑1.  My order was dated 25 June 2018 and posted to the applicant.

6.During this hearing for an extension of time to appeal, the applicant agreed that he received my order posted to him.  In his summons and affidavit, he does not explain why this application is so late.  I gave him an opportunity to explain during the hearing and he said his only explanation is his ignorance of the law and procedure; he did not know he had to appeal within a timeframe.

7.In his affidavit he only submits that he did not want to go home to his country because he still faced threats and his life was in danger.  There is no draft notice of appeal or any grounds of appeal set out that he would rely on.  I gave him an opportunity to put forward grounds during the hearing and he only said that the adjudicator of the TCAB was unreasonable, did not look into his case properly nor did he consider how difficult it was for the applicant to gather evidence for his claim when he left his country.

8.He does not give any reasons why my decision was unfair and unreasonable; there is no criticism of my decision at all.  It would appear that he is hoping the Court of Appeal will consider his application afresh.

Conclusion

9.The applicant’s explanation that he was unaware of the procedure and timetable to appeal to the Court of Appeal is no excuse, ignorance of the law is no excuse.  I find no reasonable explanation for his delay in bringing the intended appeal.

10.In addition, I find that there is no merit nor any real prospect of success in the intended appeal.  There are no grounds of review nor any complaint of my decision to refuse leave.  I gave him an opportunity during the hearing but none were forthcoming.

11.Ultimately, having considered the significant length of delay, lack of reasonable excuse for that delay and the lack of merit in his application, it would not be in the interests of justice to grant an extension of time.

12.The applicant’s summons dated 10 May 2019 is dismissed.

The applicant appeared in person.