Case Detail

CAMP 120/2019

[2019] HKCA 1176

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 120 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 785 OF 2017)

________________________

BETWEEN

	Udeh Dominic Onyemaechi	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	Director of Immigration	Putative Interested Party

________________________

Before:

Hon Kwan VP, Cheung JA and Barma JA in Court

Date of Written Submission:	20 September 2019
Date of Judgment:	22 October 2019

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the Judgment of the Court):

1. This is the applicant’s application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 28 August 2019[1]dismissing his application for extension of time to appeal against the judge’s decision refusing leave to apply for judicial review concerning his non-refoulement claim.

2. The Registrar of Civil Appeals had directed on 9 September 2019 that the notice of motion shall be determined on paper only without an oral hearing pursuant to paragraph 3 of Practice Direction 2.1. We find it appropriate to do so and will determine this application on paper.

3. In dealing with this application, the procedural history of the application for leave to seek judicial review in the High Court is relevant and we set this out as follows.

4. The applicant filed a Form 86 and an affidavit on 19 October 2017 to seek leave to apply for judicial review against the decisions of the Director of Immigration (made on 5 January 2015 and 26 October 2016) and the Torture Claims Appeal Board (made on 12 December 2016). The application for leave to apply for judicial review was made outside the three-month period under Order 53 rule 4(1) of the Rules of the High Court and was 104 days out of time.

5. On 27 July 2018, Campbell-Moffat J dismissed the leave application aforesaid, as the applicant had submitted no explanation for his delay and had not sought leave for an extension of time.

6. The judge’s decision dismissing the application for leave to apply for judicial review out of time (“the July 2018 Decision”) is an interlocutory decision (Kwok Cheuk Kin v Leung Chun Ying; MI & Anr v Permanent Secretary for Security [2018] 4 HKC 440 at §§21, 28, 29, 44 and 45). Section 14AA(1) of the High Court Ordinance, Cap 4 applies and leave to appeal against the July 2018 Decision is required.

7. On 10 August 2018, the applicant applied for leave to appeal against the July 2018 Decision. The judge granted leave to appeal on 8 October 2018[2] on condition that the applicant shall file with the court documentary confirmation from the Director of Legal Aid of his application for Legal Aid in respect of his application for judicial review and the date of refusal of that application within 14 days.

8. The applicant duly complied with the condition imposed, so leave to appeal was granted to him by the judge on 19 October 2018[3].

9. However, he did not proceed with the appeal thereafter. He did not serve a notice of appeal within 7 days after 19 October 2018, as required under Order 59 rule 4(1)(a), and hence needed leave to extend time to appeal[4]. On 31 January 2019, he filed a summons in those terms and attended a hearing of that application before the judge on 24 May 2019.

10. Under Order 59 rule 2B(6), the judge has power to extend time for making an application for leave to appeal before or after the expiry of the period. Having considered the procedural background, in particular the length of the delay in progressing his appeal, the reason given for the delay as well as the underlying merits of his application both as to judicial review and on appeal, the judge rejected the application on 27 May 2019, as it would not be in the interest of justice to grant an extension of time in all the circumstances[5].

11. The applicant filed a renewed application with the Court of Appeal seeking leave for an extension of time to appeal on 10 June 2019. Pursuant to Order 59 rule 2B(3), such further application may be made to the Court of Appeal. As mentioned at the outset of this judgment, this application was dismissed by the Court of Appeal on 28 August 2019, having taken into account the length of the delay and the lack of merits of the intended appeal. As a result, the applicant was refused leave to appeal to the Court of Appeal against the July 2018 Decision.

12. Not having pursued his appeal against the July 2018 Decision within time, the applicant required leave to appeal out of time. Leave was refused by the judge on 27 May 2019, and by the Court of Appeal on 28 August 2019. Under section 14AB of the High Court Ordinance, no appeal lies from a decision of the Court of Appeal as to whether or not leave to appeal to it should be granted. In other words, the decision of the Court of Appeal on 28 August 2019 refusing leave to appeal is final.

13. In Re Shah Zafar Ali[2019] HKCA 186 at §§6 and 7, the Court of Appeal applied section 14AB and refused to grant leave to appeal to the Court of Final Appeal where the Court of First Instance refused an application for leave to apply for judicial review out of time.

14. For the above reasons, we apply the finality provision in section 14AB and dismiss the notice of motion seeking leave to appeal to the Court of Final Appeal.

(Susan Kwan)	(Peter Cheung)	(Aarif Barma)
Vice President	Justice of Appeal	Justice of Appeal

The Applicant (Appellant), acting in person

[1] [2019] HKCA 977

[2] [2018] HKCFI 2279

[3] [2019] HKCFI 1369 at §1

[4] [2019] HKCFI 1369 at §§2 and 5

[5] [2019] HKCFI 1369 at §§5, 7 and 8

CAMP 120/2019

[2019] HKCA 977

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 120 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 785 OF 2017)

________________________

BETWEEN

	UDEH DOMINIC ONYEMAECHI	Applicant
	and
	TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE	Putative Respondent
	DIRECTOR OF IMMIGRATION	Putative Interested Party

________________________

Before:

Hon Kwan VP and Barma JA

Date of Written Submission:	27 June 2019
Date of Judgment:	28 August 2019

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the Judgment of the Court):

1. The applicant is a Nigerian national who entered Hong Kong on 22 January 2008 and he has overstayed since 6 February 2008. On 19 October 2009, he was arrested by the police for overstaying. He raised a non-refoulement claim on 23 October 2009 on the basis that he would be killed by a former business partner as a result of a dispute over money.

The Director’s decisions

2. By a Notice of Decision dated 5 January 2015 and a Notice of Further Decision dated 26 October 2016, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim.

The Board’s decision

3. The applicant attended the hearing of the appeal against the Director’s decisions before the Torture Claims Appeal Board (“the Board”) on 12 December 2016. The Board considered, inter alia, that the evidence of the applicant is unreliable, improbable and lacking in credibility. The applicant had not suffered from any physical violence or harm from his former business partner other than one oral threat to kill him if he did not return the money in 2004. The Board found that the applicant failed to establish that his suffering attained a minimum level of severity physically or mentally required for non-refoulement protection. The Board also found that state protection is available in Nigeria. The appeal was thus dismissed by the Board on 7 July 2017.

The intended judicial review

4. The applicant filed a Form 86 and an affidavit on 19 October 2017 to seek leave to apply for judicial review against the decisions of the Director and the Board. The application was made out of time.

The judge’s decision

5. On 27 July 2018, Campbell-Moffat J dismissed the application as the applicant had submitted no explanation for his delay and had not sought leave for an extension of time.

6. On 10 August 2018, the applicant applied for leave to appeal against the order dated 27 July 2018. He submitted, among other things, that he had applied for legal aid. The judge granted leave to appeal on 8 October 2018^{^[1]} on condition that the applicant shall file with the court documentary confirmation from the Director of Legal Aid of the application for Legal Aid in respect of the application for judicial review and the date of refusal of that application within 14 days.

7. As the said conditions were fulfilled by the applicant, leave to appeal against the order dated 27 July 2018 was granted to him on 19 October 2018.

8. However, the applicant did not proceed with the appeal thereafter. On 31 January 2019, he filed a summons to apply for an extension of time to appeal. Having considered the length of the delay in progressing his appeal, the reason given for the delay as well as the underlying merits of his application both as to judicial review and on appeal, the judge rejected the application on 27 May 2019, as it would not be in the interest of justice to grant an extension of time^{^[2]}.

9. The applicant filed a renewed application with the Court of Appeal for an extension of time to appeal on 10 June 2019.

The grounds of appeal

10. In his written submissions, the applicant stressed that high standards of fairness are required in the determination of a torture claim^{^[3]} and submitted that the adjudicator had acted in a procedurally unfair manner in dealing with his application without properly assessing his credibility^{^[4]}.

11. He stated in the summons filed on 10 June 2019 that he did not receive the sealed order, the Call-1 form and the judgment before the deadline for filing the notice of appeal as these documents were lost by post. He only got these documents after searching the court file^{^[5]}.

Analysis and disposition

12. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

13. Leave to appeal was granted by the judge on 19 October 2018. Pursuant to Order 59, rule 4(1)(a) of the Rules of the High Court (Cap 4A), the applicant had 7 days to serve a notice of appeal after leave to appeal was granted. The applicant only took out a summons in the court below on 31 January 2019 for an extension of time to lodge his appeal. He was late by more than 3 months. The delay is substantial.

14. In the present summons, he explained that his delay was due to the fact that he did not receive the sealed order, Call-1 form and the judgment within 14 days from 27 May 2019 as he could only get them after searching the court file.

15. 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. The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant ^{^[6]}.

16. In assessing the merit of the intended appeal, the court would adopt the following legal principles in dealing with appeals of non‑refoulement cases^{^[7]}:

(1)   The role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board. Assessment of evidence and Country of Origin Information (“COI”) materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.
(2)   An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge. In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.
(3)   In respect of new arguments, the Court of Appeal will not generally entertain fact-and-evidence sensitive new arguments which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.
(4)   In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge, the appeal should be dismissed. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

17. The applicant’s submissions are bare assertions without particulars. He has failed to establish any error of law or procedural unfairness or irrationality in the decision of the Board.

18. We dismiss the summons filed on 10 June 2019 as the applicant has failed to show he has any prospect of success in the intended appeal.

(Susan Kwan)	(Aarif Barma)
Vice President	Justice of Appeal

The Applicant, acting in person

[1] [2019] HKCFI 2279.

[2] [2019] HKCFI 1369.

[3] This ground was not raised when the applicant filed the Form 86 and his supporting affidavit.

[4] This ground was not raised when the applicant filed the Form 86 and his supporting affidavit.

[5] The applicant stated in his summons he did not receive the documents within 14 days from 27 May 2019. In his affidavit also of 10 June 2019 that by 27 May 2019, he stated that he received the documents mentioned within 14 days from 27 May 2019. We assume that the contrary statement in his affidavit is an error.

[6] Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017, at §9.

[7] Nupur Mst v Director of Immigration[2018] HKCA 524 at §14.

UDEH DOMINIC ONYEMAECHI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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