RE ANYIAM PRINCE NNAMAKA

CAMP 180/2018

[2019] HKCA 1438

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 180 OF 2018

(ON AN INTENDED APPEAL FROM HCAL 887 OF 2017)

_______________

RE:

ANYIAM PRINCE NNAMAKA

Applicant

_______________

Before: Hon Cheung, Barma and Au JJA in Court

Date of Written Submissions: 13 June 2019

Date of Judgment: 20 December 2019

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.  On 23 May 2019, this Court (Barma and Au JJA) handed down our judgment (“the Judgment”) [2019] HKCA 558, refusing to give leave to the applicant to appeal out of time against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) given on 22 June 2018 (“the Deputy Judge’s Decision”).

2.  We dismissed the applicant’s summons on the basis that the delay was substantial and inordinate and the intended grounds of appeal contained no viable grounds of appeal against the Deputy Judge’s Decision.  In any event, we also found that the Deputy Judge was correct in refusing to grant leave to apply for judicial review.

3.  The facts and issues in the appeal, as well as the Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.

4.  On 31 May 2019, the applicant filed a Notice of Motion to apply for leave to appeal against the Judgment to the Court of Final Appeal.  The applicant has also lodged written submissions on 13 June 2019 to support his application pursuant to Master Au‑Yeung’s directions dated 3 June 2019.

5.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484), leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

6.  The applicant advanced the following grounds in the Notice of Motion:

“I would like to infomr the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL information and my previous facts which were in favor while rejecting my claim. Acual life occur different situation then what is mentioned in the COL Information. The Officer and cours prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.” [sic]

7.  In his written submissions, he quoted the same passages from ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 as he did before this court.  He further stated, in summary, that (a) the adjudicator acted in a procedurally unfair manner; (b) the decision could be set aside if it is Wednesbury unreasonable; and (c) the Board should consider the requirements under section 37ZT of the Immigration Ordinance (Cap 115) (“the IO”) for late filing of notice of appeal.

8.  Having considered the applicant’s Notice of Motion and written submissions, pursuant to the Practice Direction 2.1, we regard it as appropriate to consider this application on paper without an oral hearing.

9.  In our view, this application is devoid of merit.

10.  First, nowhere in the applicant’s Notice of Motion or written submissions has he identified any errors in the Judgment.

11.  Second, those authorities cited by the applicant in the written submissions did not assist him and we have dealt with them at [13] - [17] of the Judgment.  Further, the complaints raised by the applicant with regard to Country of Origin information in his Notice of Motion and the arguments in his written submissions about procedural unfairness, Wednesbury unreasonableness and section 37ZT of the IO were not argued before the Deputy Judge nor before this court.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the appeal before it[1] nor is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not previously argued in the Court of Appeal[2].

12.  In the premises, none of the grounds now raised by the applicant identified any errors in the Judgment. They are not viable grounds of appeal.

13.  In any event, for the reasons that we gave in the Judgment, we do not see any prospect of success in the applicant’s intended appeal against the Deputy Judge’s Decision.  Further, none of the questions raised by the applicant in the Notice of Motion or in his written submissions involve any question of great general or public importance such that it ought to be submitted to the Court of Final Appeal for decision. Nor do we see any basis to grant leave on the “otherwise” limb.  The statutory criteria for granting leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Court of Final Appeal Ordinance are not met.

14.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his Notice of Motion.

(Peter Cheung) Justice of Appeal

(Aarif Barma) Justice of Appeal

(Thomas Au) Justice of Appeal

The applicant acting in person

CAMP 180/2018

[2019] HKCA 558

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 180 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO 887 OF 2017)

____________

RE :

ANYIAM PRINCE NNAMAKA

Applicant

____________

Before:

Hon Barma and Au JJA in Court

Date of Written Submission:	14 December 2018
Date of Judgment:	23 May 2019

___________________

J U D G M E N T

___________________

Hon Au JA (giving the Judgment of the Court) :

INTRODUCTION

1.  By a decision dated 22 June 2018 (“the Deputy Judge’s Decision”) [2018] HKCFI 1373, Deputy High Court Judge Bruno Chan (“the Deputy Judge”) refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) dated 29 September 2017 dismissing his appeal regarding his non‑refoulement claim (“the Board’s Decision) and the decisions of the Director of Immigration (“the Director”) dated 3 September 2015 (“the Director’s First Decision”) and 8 February 2017 (“the Director’s Second Decision”).

2.  The applicant issued a summons on 18 October 2018 before the Deputy Judge seeking leave to appeal the Deputy Judge’s Decision out of time.  Pursuant to Order 53 rule 3(4) of the Rules of High Court, the 14‑day period for him to lodge such appeal expired on 6 July 2018. Thus, the application was more than 3 months out of time.  On 16 November 2018, the Deputy Judge refused his application to appeal out of time.

3.  The applicant now renews the application for extension of time to this Court by way of a summons dated 29 November 2018 (“the Summons”).  Pursuant to the directions of the Registrar of Civil Appeal given on 30 November 2018, the applicant lodged his written submission on 14 December 2018.  Having considered the applicant’s written submission, we take the view that the renewed application can be disposed of on paper without an oral hearing pursuant to Order 59 rule 2A(5)(a) of the Rules of the High Court (Cap 4A).  We now hand down our judgment.

Background

4.  The applicant is a national of Nigeria.  He first came to Hong Kong on 18 January 2011 as a visitor and was permitted to stay until 9 February 2011.  He overstayed and was arrested by the police in Hong Kong on 2 October 2012.  He lodged a non-refoulement claim on 4 October 2012.

5.  The details of the applicant’s claim and his personal background were set out in paragraphs 5 - 6 of the Director’s First Decision, and paragraphs 27 - 44 of the Board’s Decision.

6.  Briefly stated, the applicant claimed that if he were to return to Nigeria, he would be harmed or killed by money lenders named Richmond, Ernest and their associates because he was unable to repay the loan he borrowed from them.  He also feared that he would be killed by a militant group called Boko Haram because he is a Christian. 

THE DIRECTOR’S DECISIONS AND THE BOARD’S DECISION

7.  By the Director’s First Decision and the Director’s Second Decision (collectively, “the Director’s Decisions”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3]. The Director’s Second Decision assessed the BOR 2 risk^[4].

8.  The applicant appealed the Director’s Decisions to the Board.  After a hearing on 27 April 2017, the Board dismissed the appeal. The Board found that the applicant was not a credible witness and his evidence was contradictory and fabricated for the purpose of his claim.  Even if the applicant had borrowed loan from the money lenders, the Board was of the view that the money lenders had no intention to harm or kill him.  In any event, internal relocation is available to the applicant (paragraphs 53 - 58 of the Board’s Decision).  Thus, the Board rejected the applicant’s case in its entirety and found that he had not established his claim for his non‑refoulement protection claim under all applicable grounds.

THE DEPUTY JUDGE’S DECISION

9.  On 14 November 2017, the applicant filed his Form 86 for leave to apply for judicial review against both the Director’s Decisions and the Board’s Decision.  He did not provide any viable grounds for the intended challenges.  After considering all the evidence, the Deputy Judge refused the applicant’s application.  He set out his reasons at paragraphs 10 - 12 of the Deputy Judge’s Decision:

“10. On 14 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but neither in it nor in his supporting affidavit of the same date did he put forward any grounds for his intended challenge other than just exhibiting copies of their earlier decisions, notice of hearing and the hearing bundle for his appeal to the Board.

11. As noted by the Court of Appeal in TK v Jenkins[2012] HKCA 502; [2013] 1 HKC 526, the court in judicial review does not sit on appeal from the decision of the Director or the adjudicator in dismissing the claim, but instead only plays a supervisory role by looking at its legality under the public law involving usually the broad grounds of any error of law committed by the Director or the adjudicator, or any procedural unfairness, or whether the decision is irrational or Wednesbury unreasonable in the public law sense.

12.       Here the applicant did not even say in his affidavit that the Director or the adjudicator had erred in their decisions, while at the hearing of his leave application he merely stated that the Director and the Board had not properly considered his claim but without providing any particulars or specifics or elaborations as to how or where they had erred in their decisions. Nevertheless, having proceeded to consider their decisions with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.”

EXTENSION OF TIME IN THE COURT BELOW

10.  On 18 October 2018, the applicant took out a summons seeking leave to appeal against the Deputy Judge’s Decision out of time. The leave application was heard by the Deputy Judge on 26 October 2018.  By the decision handed down on 16 November 2018 [2018] HKCFI 1373, the Deputy Judge refused to extend time for the applicant’s application.

11.  The Deputy Judge found that the delay of more than three months was substantial and the applicant failed to provide a satisfactory explanation for the delay.  He refused to accept the applicant’s explanation that the applicant did not receive any letter from the court.  The applicant had all along resided at the same address and yet he could not explain why he did not receive the Deputy Judge’s Decision.  Further, the applicant also failed to provide any intended grounds of appeal or put forward any particulars pointing out any legal errors or procedural unfairness in the Deputy Judge’s Decision.  In the absence of any reasonably arguable ground, the Deputy Judge held that the application was totally without merit and dismissed his application.

DISCUSSION

12.  In the Summons, the applicant merely stated that he sought to apply for leave to appeal against the Deputy Judge’s Decision.  In his supporting affirmation filed on the same date, he provided the following ground of appeal:

“the application for leave to appeal out of time be allowed. I would like to inform the court that I did not appeal untime [sic] 14 days because of almost delay [sic]. Please see the exhibit ‘A’ mark total 6 pages.”

13.  Exhibit A was the Deputy Judge’s refusal for extension of time.  The applicant lodged two sets of written submissions.  In his hand-written written submissions, the applicant repeated the basis of his claim that his life would be in danger if he were to return to Nigeria.  In the well-typed written submissions, the applicant quoted some passages from ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 on the “high standards of fairness” required of a decision-maker in the determination of a non‑refoulement claim. 

14.  Neither the Summons nor the written submissions provided any explanations for delay.  We agree with the Deputy Judge that the delay was substantial and inexcusable.  As held in Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125, where the delay was both inordinate and inexcusable, the applicant is required to demonstrate that the intended appeal has real prospect of success, before leave of appeal is to be granted.

15.  Nonetheless, neither the intended ground of appeal nor the written submissions contained any viable ground of appeal against the decisions made by the Deputy Judge.   We agree with the Deputy Judge that the grounds set out in the affirmation in support of his application for leave to apply for judicial review were hopelessly without merit. 

16.  In any event, after our review of the materials placed before the Deputy Judge, we agree with the Deputy Judge’s Decision that the Board had achieved the high standards of fairness required and was entitled to render those findings, conclusions and decisions.  We do not see any error of law or procedures in the proceedings before the Board and the Deputy Judge was clearly right to refuse to grant leave to apply for judicial review.

17.  For the reasons set out above, we are of the view that the application is totally devoid of merits and the intended appeal is doomed to fail.  Nor is there any other reason in the interest of justice why the appeal should be heard.  The Summons is dismissed accordingly.

18.  We further make an order pursuant to Order 59 rule 2A(8) of the Rules of the High Court, that no party may request this determination be reconsidered at an oral hearing inter partes.

 
 

(Aarif Barma)	(Thomas Au)
Justice of Appeal	Justice of Appeal

  

The applicant acting in person