RE EZEABARA CHINEDU

CAMP 206/2019

[2020] HKCA 769

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 206 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 605 OF 2018)

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J U D G M E N T

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

1.  By a judgment dated 21 May 2020 ([2020] HKCA 327), this Court (Yeung VP and Pang JA) refused to grant leave to the applicant to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 21 June 2019 in HCAL 605/2018 refusing to grant an extension of time for him to apply for judicial review. The applicant sought to review the decision of the Torture Claims Appeal Board (“Board”) given on 25 May 2017 dismissing his petition/appeal from the decisions of the Director of Immigration (“Director”) given on 10 December 2015 and 25 October 2016 rejecting his non-refoulement claim.

2.  By a notice of motion dated 10 June 2020, the applicant now seeks leave to appeal to the Court of Final Appeal on the grounds that:

“On 21 May 2020 The Honourable Judges of the Court of Appeal dismissed my claim for leave to apply for judicial review. I do not agree with them. I did not get fair justice. The Judges failed to show any good cause for cancel. But points were very strong. Now I want to go to the Court of Final Appeal for justice.”

3.  In compliance with the directions made by the Registrar of Civil Appeals on 18 July 2020, the applicant lodged his written submissions on 31 July 2020.

4.  In his written submissions, he quoted passages from ST v Director of Immigration[1] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on Wednesbury unreasonableness.  He further submitted that “high standards of fairness” applied to the determination of a non - refoulement claim and that the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility. Lastly, he referred to section 37ZT of the Immigration Ordinance (Cap. 115) which is about the late filing of notice of appeal to the Board. However, he did not explain and elaborate how the aforesaid cases and statutory provision were related to or would assist his case.

5.  The Registrar further directed that unless the court otherwise directs, the notice of motion shall be determined on the papers only without an oral hearing.  As it is appropriate to do so, this application is processed on papers without an oral hearing.

6.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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.

7.  In our judgment, nothing set out in the notice of motion and the written submissions can constitute as viable ground of appeal as they did not pinpoint any error of law or raise any discernible or arguable ground for disturbing our judgment.  As stated at [17] of our judgment, the applicant’s case was rightly rejected by the Board on the issue of credibility and we took the view that the Board’s decision was well justified and without flaw.  

8.  Though it has recently been held by the Court of Final Appeal in H v Director of Immigration[2020] HKCFA 22 that an applicant did not need to seek leave under section 14AA of the High Court Ordinance (Cap. 4) (“Section 14AA”) to appeal to this Court in respect of a refusal of extension of time to bring an application for leave to judicial review, and technically an appeal can be brought to this Court by way of appeal out of time, it cannot assist the applicant in this instance because:

(a)  the present application is made in respect of our judgment on refusal of Section 14AA leave and it serves no purpose for an appeal to the Court of Final Appeal regarding such refusal of leave.  The reversal of our decision on Section 14AA leave would not automatically lead to success in his appeal against the Judge’s decision of 21 June 2019.  To achieve that he would need to bring an appeal to this Court;

(b)  due to lapse of time, the applicant would need an extension of time to bring an appeal to this Court and if he had made such application, the Court would have regard to the merits of his intended appeal in deciding if extension should be granted; and

(c)  having regard to our views on the lack of merit in his intended appeal as set out at [17] of our judgment of 21 May 2020, this Court would not grant an extension of time for a futile appeal to be brought.

9.  For the aforesaid reasons and the reasons on the merit of the applicant’s appeal that we gave in our judgment of 21 May 2020, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  None of the questions raised by the applicant in the notice of motion and his written submissions involves an arguable point or a question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b) either. The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

10.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his notice of motion.

The applicant, unrepresented, acted in person.

CAMP 206/2019

[2020] HKCA 327

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 206 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 605 OF 2018)

_____________________

_____________________

___________________

J U D G M E N T

___________________

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

Introduction

1.  By a summons filed on 26 August 2019, the applicant renewed his application for leave to appeal against the decision given by Deputy High Court Judge Bruno Chan (“the Judge”) on 21 June 2019 (“the Decision”) refusing to grant the applicant an extension of time to apply for judicial review.  The intended judicial review was against the decision of Torture Claims Appeal Board (“the Board”) dated 25 May 2017, in which the Board confirmed the decisions made by the Director of Immigration (“the Director”) dated 10 December 2015 and 25 October 2016.

2.  The applicant’s leave application to appeal against the Decision was refused by the Judge on 21 August 2019.

3.  The applicant now renews his leave application before this Court.  Pursuant to the directions of the Registrar of Civil Appeals given on 30 August 2019, the applicant lodged his written submissions on 17 September 2019. 

4.  Having considered the summons, the supporting affirmation and the written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

5.  The applicant is a national of Nigeria.  He came to Hong Kong on 29 March 2009 as a visitor and was allowed to stay up to 12 April 2009.  He did not depart and instead overstayed until 14 November 2011 when he surrendered to the Immigration Department.  On the same day, he lodged a torture claim on the basis that if he returned to Nigeria he would be harmed or killed by his creditor John Okafor (“JO”) for failing to repay his loan.  His torture claim was rejected on 3 October 2013.  On 9 October 2013, he raised a non-refoulement claim for protection on the same basis. 

6.  By a Notice of Decision dated 10 December 2015, the Director decided against the applicant’s claim on BOR 3 risk, the persecution risk, and the torture risk.  By a Notice of Further Decision dated 25 October 2016, the Director rejected the applicant’s claim on BOR 2 risk.

7.  The applicant appealed to the Board.  After the hearing on 9 November 2016, the Board dismissed the appeal on 25 May 2017. It was the applicant’s case that he lost the money in Hong Kong soon after he borrowed it from JO and the loan agreement stipulated that he would be killed by JO if he failed to repay the loan.  For the reasons stated in [44] to [61] of the Board’s decision, it found that the applicants’ case was premised on hearsay evidence which was intrinsically incredible and lacked the backing of cogent and independent evidence.  The Board rejected his evidence of the alleged loan, the loss of the money and the threats made to him or his family and there was no basis to support that he would face any risk of harm if refouled.  The Board found that the applicant failed to establish his claims on all applicable grounds.

The Judge’sDecision

8.  On 10 April 2018, the applicant filed his Form 86 together with his supporting affirmation for leave to apply for judicial review of the Director’s and the Board’s decisions.   The application was made beyond the three months’ time limit.  In his application, he set out the grounds for his intended challenge as follows:

(1) The Director and the Board reached their decisions wrongly in assessing his non-refoulement claim.

(2) Their decisions were not fair or reasonable as required by the Wednesbury test.

(3) They failed to take into account that the right to life must be protected from extra-judicial killings which he may face if deported to his home country.

(4) The Board failed to give him sufficient time and opportunity to arrange relevant evidence for his non-refoulement claim as well as his appeal.  

9.  The Judge heard the leave application on 1 February 2019 and by the Decision of 21 June 2019, he refused to grant an extension of time to apply for leave for judicial review for the applicant’s failure to provide good reasons for his delay and that his case was devoid of merit.  The Judge also explained that the Director’s decisions were not susceptible to judicial review once an appeal to the Board has been pursued and the Board’s decision would supersede the Director’s decisions.  The Judge’s reasons for his refusal were duly set out at [15] – [23] of the CALL-1 Form:

“15. As for the Board’s decision, by then the applicant was way out of time with his Form 86, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

16. As the Board’s decision was made on 25 May 2017, the last date for the applicant to make his application fell on 25 August 2017 under the said rule, and hence when he filed his Form 86 on 10 April 2018, he was more than 7 ½ months out of time which must be regarded as a very substantial delay.

17. In considering whether to extend time the Court shall have regard to (i) the length of the delay; (ii) the reasons for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: Re Thomas Lai [2014] 6 HKC 1; and AW v Director ofImmigration & anor CACV 63/2015.

18. The applicant did not provide any explanation in his supporting affirmation for his delay, but at the hearing of his application before me he explained that he was then being detained at the Castle Peak Bay Immigration Centre (“CIC”) and was therefore unable to file his Form within time, but the fact is that he did file his Form 86 and his supporting affirmation at the time when he was still being detained at CIC, and hence his detention cannot be accepted as a valid reason for his delay, and in the absence of any further particulars or elaboration from the applicant, I am not convinced that he has provided any good reason for such a substantial delay of his application.

19. As for any merits of his intended application, all of his grounds are just some broad and vague assertions containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable, or what relevancy were extra-judicial killings to his case, or how did the adjudicator fail to give him sufficient time or opportunity to present or produce his evidence in support of his claim or appeal. None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and in fact even at the hearing of his application before me the applicant did not adduce any further evidence or argument for his claim other than a letter from his wife pleading for this court to re-consider his claim as she needed him to remain in Hong Kong to raise their daughter, a fact not at all relevant to his claim or to the matter now before me.

20. As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh[2018] HKCA 246; Re Daljit Singh[2018] HKCA 328; ReMudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400; and Re Litoun Mounsy[2018] HKCA 537.

21. In the applicant’s case, the adjudicator rejected his claim based on adverse finding on his credibility for the careful and thorough analysis and reasoning set out in paragraphs 44 – 61 of the Board’s decision, and with the benefit of hearing him in evidence and his answers to questions put to him at the oral hearing. In the absence of any error in that decision being clearly and properly identified by the applicant, the adjudicator was entitled to arrive at his findings against him on the basis of the evidence before the Board, and I do not find any of the grounds of the applicant reasonably arguable for his intended challenge.

22. Furthermore, even if his alleged fear of harm were real or substantial, the fact that it has been established by the Director in his decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nigeria, and which decision has been subsequently confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

23. In the premises and having considered the decisions of both the Director and the Board 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.”

10.  By a summon together with supporting affirmation dated 4 July 2019, the applicant sought leave to appeal against the Decision.  The applicant did not provide any draft or proposed grounds of appeal in his summons nor in his supporting affirmation.  He merely repeated his claim that his life would still be in danger in his home country, that he is now married in Hong Kong with a family and a child to look after, and that he does not want to leave. 

11.  By the decision dated 21 August 2019, the Judge refused to grant leave under section 14AA of the High Court Ordinance, Cap. 4.  The Judge found no merit in the applicant’s case as he failed to pinpoint any error of law or procedural unfairness in the process of the Board and there was also no arguable basis to challenge the Decision.  As there was no prospect of success in the applicant’s intended appeal, the Judge dismissed the summons accordingly.

The Renew Application

12.  By the summons dated 26 August 2019, the applicant renewed the matter before us.  In his supporting affirmation and the written submissions, the applicant merely repeated the background of his case and requested to stay in Hong Kong with his family as he would face risk of harm and even get killed by JO if he returns to his home country.

Legal Principles

13.  In Kwok Cheuk Kin v Leung Chun Ying[2018] HKCA 419, the Court of Appeal held that the refusal to extend time for leave to apply for judicial review is interlocutory in nature. 

14.  According to section 14AA(1) of the High Court Ordinance (Cap. 4), no appeal shall lie to the Court of Appeal from an interlocutory judgment or order of the Court of First Instance in any civil cause or matter unless leave to appeal has been granted. Section 14AA(4) further provides that no leave to appeal shall be granted unless the court is satisfied that there is a reasonable prospect of success in the intended appeal, or that there is some other reason in the interests of justice that the intended appeal should be heard. 

15.  In assessing the prospect of success of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see Nupur Mst v Director of Immigration[2018] HKCA 524 at [14]; Re Md Shohel Sheak[2018] HKCA 714 at [13]; and Re Limbu Birkhaman[2019] HKCA 50 at [11].  For the purpose of this application, we only need to highlight the following principles:

(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 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 or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3) 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 of appeal 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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A).

Discussion

16.  In our judgment, there is no prospect of success in the intended appeal.  It is clear to us that the Judge was correct in refusing to grant an extension of time for the applicant to apply for judicial review.  The applicant was 7.5 months late in making the application and in the absence of any good reason for the delay, the Judge was perfectly entitled to hold that the delay was substantial and inexcusable. 

17.  The applicant had failed to provide any ground of appeal nor pinpoint any error of law or procedural impropriety in the Decision and his intended appeal is bound to fail.  Further, the applicant’s case was dismissed by the Board on the issue of credibility and his failure to substantiate the claim with cogent evidence and his case was rejected in its entirety.  We agree with the Judge that the Board’s decision was well justified and without flaw.

18.  In the circumstances, it would be futile to extend the time for a hopeless appeal to be brought.  Accordingly, we refuse the application for leave to appeal, and dismiss the applicant’s summons.

19.  Since the application is totally without merit, we further make an order under Order 59, rule 2A(8) of the Rules of the High Court (Cap. 4A) that the applicant may not request our determination to be reconsidered at an oral hearing.

The applicant, unrepresented, acted in person.