Re Ndukwe Bartholomew Chukwuma

HCAL 14/2018

[2020] HKCFI 56

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 14 OF 2018

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 4 December 2019

Date of Decision: 14 January 2020

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DECISION

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1.On 3 October 2019 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Director of Immigration (“the Director”) or of the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing his non-refoulement claim upon finding none of the grounds put forward by him reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in his process before the Director or the Board or in their decisions, and that there was no reasonable prospect of success in his intended application.

2.The Applicant now by a summons issued on 21 October 2019 seeks leave to appeal against that decision out of time, as the 14-day period for him to file his appeal under Order 53, rule 3(4) of the Rules of the High Court, Cap 4A ended on 17 October 2019, and hence he was late by four days with his intended appeal. 

3.In considering whether to extend time for appealing against a decision refusing leave to appeal for judicial review, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.In the Applicant’s case, a delay of four days may not be considered as significant, for which he explained at the hearing of his summons that he only received the decision on 18 October 2019 when he made enquiry at the court about it on that day.  As the court record shows that the decision sent to the Applicant’s last reported address by post on the same day of 3 October 2019 has been returned marked “no such address”, and that it was indeed on 18 October 2019 that the Applicant was given a copy of the decision, I am prepared to accept his explanation for the delay, and proceed to consider the merits or prospect of his intended appeal.   

5.However, the Applicant did not in his summons or affirmation provide any draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be argued that the decision was unfair or unreasonable, nor was he able to do so at the hearing when he merely repeated his claim that his life would still be in danger in his home country,and that the Court should not have accepted the decision of the Director or the Board in rejecting his non-refoulement claim as correct but without providing any particulars or elaboration as to how or why it was so.  As such and in the absence of any error in the decision being clearly and properly identified by the Applicant, I do not see any prospect of success in his intended appeal. 

6.In the premises, it would be futile to extend time for what appears to be a hopeless appeal.  Accordingly I refuse his application for leave to appeal out of time, and dismiss his summons.

The applicant appeared in person