Nnoli Chukwudi Kenneth v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1050/2017

[2019] HKCFI 2211

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1050 OF 2017

________________________

BETWEEN

________________________

Before: Hon Campbell-Moffat J in Chambers

Date of Hearing: 4 September 2019

Date of Decision: 4 September 2019

________________________

D E C I S I O N

________________________

Introduction

1.This is an application dated 27 August 2019 to appeal my decision of 12 April 2019, 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 attended court with the benefit of an Igbo 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 24 February 2011 and thereafter overstayed.  He was not arrested until 22 September 2015.  He submitted a non-refoulement claim form on 8 January 2016 and was interviewed by the Director of Immigration (“the Director”) on 8 and 22 April 2016.  The Director dismissed his claim under all heads, by Notice of Decision on 20 May 2016 and by Notice of Further Decision on 10 March 2017.  He appealed those decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr William Lam (“the Adjudicator”), heard him on 13 June 2017.  The Adjudicator refused his appeal on 10 November 2017.  

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 11 December 2017 and 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 12 April 2019.  He had 14 days from that date to appeal that decision which would have expired on 26 April 2019.  By way of summons dated 27 August 2019, 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 53, rule 3(4) of the Rules of the High Court 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.  The court is required to consider (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of success in the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

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 as this forms part of the consideration of whether there is good reason to allow an extension of time.  In his affidavit in support, the applicant claims:

(i)  His life is in danger.

(ii)  He would be killed by BALA.

(iii)  Nigeria does not respect the Rule of Law.

(iv)  There is insecurity in the country.

(v)  Boko Haram is more effective now.

6.None of the above provide an explanation for his delay, nor could they be considered grounds of appeal from my decision.  As for the delay, in court he claimed that he did not receive the Order at his home address at all.  He could not explain why that was the case given that the Form CALL-1 had been sent by registered post.  The court file suggests that it was properly served upon the address given at the time of the filing of the Form 86, which is the same address the applicant has confirmed he uses today.  The applicant maintains that he only learnt of the refusal of leave in the second week of August despite the fact that he reports on a fortnightly basis.  He maintains he took immediate steps thereafter but even so, I note his current summons is dated 27 August 2019, which does not support his story.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner[1].  I do not accept that the applicant did not receive the Form CALL-1 in April and take the view that he sat back and did nothing until the Immigration Department decided to take action to remove him.  Even then, he took some time to react.  The consequences of any delay arising from failing to act promptly will always fall upon the litigant in such circumstances[2].

7.Even if the court does accept that the explanation given for the delay is reasonable (which it does not), the court is required to examine whether there is any merit in the applicant’s appeal[3].  Whether there is any such merit will depend upon well-established legal principles[4] including the fact that the court in judicial review is not to provide a further avenue of appeal on the merits of the underlying claim.  The applicant relies upon the grounds enunciated above.  The question for the court is whether these submissions truly seek to review the exercise of a judicial function and in so doing indicate a reasonable prospect of success in the intended appeal.

8.As the role of the court in judicial review is not to provide a further avenue of appeal from the decisions of the Director and the Adjudicator, it follows that an appeal from this court should not be founded upon any attempt to appeal those same decisions.  It is an appeal from the decision of this court and the applicant should look to draft grounds of appeal on that basis.  This was explained in some detail to the applicant when he appeared.  The grounds currently advanced do not seek to criticise the decision of this court.

Conclusion

9.The applicant has now been in Hong Kong since 2011.  He has been interacting with various government agencies since 2015, when he was finally arrested for overstaying and accepts he received all necessary documents and notifications previously.  The explanation he has offered to this court, as to why he did not receive the Order is not acceptable.

10.In any event, I have considered his underlying application.  It has no merit as explained in the initial refusal of leave. There were no grounds of review and none could be ascertained from the papers. There was no complaint before the court as to the decision to refuse leave.  The applicant merely wishes the Court of Appeal to consider his situation afresh. 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.

11.The applicant’s summons dated 27 August 2019 be dismissed.

The applicant appeared in person.