RE ADUMEKWE ROWLAND EJIKE

CAMP 24/2019

[2020] HKCA 121

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 24 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 924/2017)

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JUDGMENT

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

1.  On 28 June 2019, the Court (Lam VP and Barma JA) handed down a judgment ([2019] HKCA 702) refusing leave for the applicant to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 7 September 2018 ([2018] HKCFI 1970) out of time. In the latter decision, the Judge refused leave for the application to apply for judicial review.

2.  Over 3 months after the handing down of the judgment, the applicant filed a notice of motion on 3 October 2019 seeking leave to appeal to the Court of Final Appeal against the Court’s judgment.  The applicant put forth the following matters in the notice of motion:

(a)  The delay was due to his current “ailment”, which was attributed to “spiritual and emotional attack”.  The “ailment” was said to have affected the applicant’s memory in respect of dates and appointment.  It might also lead to Alzheimer's disease.

(b)  The Adjudicator erred in law in rejecting the applicant’s claim simply based on the lack of evidence.

3.  The applicant filed an affidavit dated 3 October 2019 in support of this application.  It was exhibited thereto a document entitled “Letter of Attestation” by a Rev Gervais Baudry of St Peter and Paul Church stating that the applicant’s past experiences had affected him spiritually and emotionally.

4.  Notwithstanding that he was directed to do so, the applicant did not lodge any written submission in support of this application.

5.  Pursuant to section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the Ordinance”), an appellant has 28 days from the date of the judgment to seek leave to appeal to the Court of Final Appeal against it.  In the present case, the time for the applicant to seek leave to appeal against the judgment expired on 26 July 2019.  The applicant was late for over 2 months. 

6.  As the applicant did not apply for leave to appeal to the Court of Final Appeal within time, good and sufficient ground must be shown by the applicant before the court will exercise its discretion to grant an extension of time for him to do so, see: section 24(5) of the Ordinance.  See also: Full Wisdom Holdings Ltd v Traffic Stream Infrastructure Co Ltd CACV 266/2003, 27 July 2004; Bowlstar (HK) Ltd v Ho Kwai Po CACV 156/2006, 10 July 2007; Elijah Saatori v Raffles Medical Group CACV 109/2008, 11 March 2009; and Tsit Wing (Hong Kong) Company Limited & Others v TWG Tea Company Pte Ltd & Another CACV 191/2013, 29 January 2015.

7.  The delay of over 2 months is substantial.

8.  In absence of any medical proof, we are not able to accept that the delay was due to medical condition as described by the applicant.  We do not accept that the delay was excusable.

9.  At [21] of the judgment, the Court found that the applicant’s delay in seeking leave to appeal was both substantial and inexcusable.  At [22], it was further explained that the intended appeal had no prospect of success.  In this application, the applicant failed to engage with the Court’s reasoning.  The applicant fails to pinpoint anything with cogency that the Court was wrong in these conclusions.

10.  In the circumstances, the applicant fails to put forward any ground of substance meriting the submission to the Court of Final Appeal for consideration.

11.  In our view, the applicant did not raise any question of great general or public importance. There is no basis to grant leave on the “or otherwise” limb.  The statutory criterion for granting leave to appeal to the Court of Final Appeal is not met: section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484).

12.  There is no good ground in this application that justifies the exercise of our discretion to grant an extension of time to appeal to the Court of Final Appeal.

13.  For these reasons, we refuse to extend time for the applicant to seek leave to appeal to the Court of Final Appeal.  The notice of motion filed on 3 October 2019 is dismissed accordingly.

CAMP 24/2019

[2019] HKCA 702

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 24 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 924/2017)

____________________________

____________________________

___________________

J U D G M E N T

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

Introduction

1.  By a decision given on 7 September 2018 (“the Refusal Decision”); [2018] HKCFI 1970), Deputy High Court Judge Bruno Chan refused the applicant’s application for leave to apply for judicial review.  The intended judicial review was against the decision of the Director of Immigration (“the Director”) dated 16 May 2017 rejecting the applicant’s claim for non-refoulement protection, as well as the decision of an adjudicator of the Non-refoulement Claims Petition Office (“the Adjudicator”) dated 31 October 2017 upholding the Director’s decision.

2.  Three months after the Refusal Decision, on 7 December 2018, the applicant took out a summons for an extension of time for bringing an appeal against the Judge’s decision out of time.  The Judge dismissed the application on 23 January 2019 (“the Extension Decision”; [2019] HKCFI 189).

3.  By a summons dated 4 February 2019, the applicant applied to this Court for leave to appeal against the Extension Decision.

Background

4.  The applicant is a national of Nigeria.  He arrived in Hong Kong on 5 May 2007 and was granted permission to remain until 21 May 2007.  He was arrested by the police for overstaying on 17 October 2009.  On 21 October 2009, he lodged his torture claim[1], which was rejected by the Director on 31 July 2013.  While the applicant did not lodge any appeal in respect of the said refusal, he raised and continued to pursue his claim for non-refoulement protection on grounds other than the torture risk.  His claim was assessed under the unified screening mechanism upon the commencement of the scheme. 

5.  His claim was based on the fear that, if returned to Nigeria, he would be harmed by the Nigerian government because of his family’s refusal to surrender their family land to the government for oil exploitation.  The background of the case was succinctly summarized in [2] – [5] of Form CALL-1 dated 7 September 2018 (published as [2018] HKCFI 1970).

6.  By a notice of decision dated 16 May 2017, the Director assessed the applicant’s claim based on the BOR 2 risk[2], the BOR 3 risk[3], and the persecution risk[4], and determined the risks against the applicant.

7.  The applicant petitioned to the Adjudicator in respect of the Director’s decision.  After having an oral hearing on 28 September 2017, the Adjudicator agreed with the Director that the applicant was not entitled to non-refoulement protection in Hong Kong.  The applicant’s petition was dismissed on 31 October 2017.

The Judge’s decision

8.  On 21 November 2017, the applicant applied to the court for leave to apply for judicial review.  According to Form 86, the intended judicial review was against both decisions of the Director and of the Adjudicator. 

9.  The grounds for seeking reliefs were set out by the Judge at [10] of Form CALL-1, and we will not repeat them here.

10.  Upon the request of the applicant, an oral hearing was listed for 10 August 2018.  However, the applicant failed to appear as scheduled.  The Judge proceeded to consider the application in his absence.  Having given regard to the decisions of the Director and the Adjudicator, the Judge refused to grant leave for the applicant to apply for judicial review.   The Judge’s reasons for refusing leave were set out in [11] – [14] of Form CALL-1 as follows:

“ 11. These are however all just broad and vague assertions of the applicant containing several pages of 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 their decisions, or what relevancy is state acquiescence to police torture when there is no evidence whatsoever of him ever being tortured by police at any time in Nigeria, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI. None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

12. The fact is that the applicant’s claim of threats from the Nigerian government over his family’s land has been rejected on facts and evidence by both the Director and the Board where the evaluation of risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and that in the absence of any legal error being identified by an applicant, the court will not usurp their roles as primary decision makers: see Re Lakhwinder Singh[2018] HKCA 246; Re Daljit Singh[2018] HKCA 328; and Re Mudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400.

13. In the premises and having proceeded to consider 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.

14. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

11.  Order 53, rule 3(4) of the Rules of the High Court (Cap 4A) provides that, where an application for leave is refused by a judge or is granted on terms, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.  Upon the expiration of the said 14-day period, no notice of appeal was filed against the Judge’s decision.

12.  On 7 December 2018, that is, two and a half months after the expiration of the statutory time limit, the applicant took out a summons for leave to file a notice of appeal out of time.  In the document entitled “Grounds of Appeal” exhibited to the supporting affirmation dated 7 December 2018, the applicant explained that the delay was due to the fact that the Judge’s decision “did not reach [his] mail box”.  He also referred to the latest development in Nigeria and reiterated that his life would be in danger there.

13.  In the Extension Decision, the Judge decided not to grant leave for the applicant to bring the appeal out of time.  The Judge took the view that the delay of two and a half months was substantial and that the applicant’s explanation was not credible.  Furthermore, the applicant failed to pinpoint any legal error, procedural unfairness, or irrationality in the Judge’s decision.  Accordingly, the Judge found that there was no prospect of success in the intended appeal.

Further application for extension of time

14.  On 4 February 2019, he applicant took out a summons seeking leave to appeal against the Extension Decision.  It was stated in the summons that the applicant genuinely believed that he would not be protected by the state or authority upon his return. 

15.  On 26 February 2019, the applicant lodged two sets of documents with the court.  The first document is entitled “Draft Ground of Appeal”, and the second “Statement as to why Leave to Appeal should be Granted”.  In the former, the applicant stated that:

(a)  He feared that he would be subjected to torture or even be killed by the Nigerian government if returned;

(b)  If he returned to Nigeria, his wife (a Hong Kong permanent resident) would be forced to go with him and would likely be kidnapped by a militant group for ransom; and

(c)  Forcing him to return to Nigeria would be a violation of, and unlawful interference with, his and his wife’s right to family life guaranteed under Art 19 of the Hong Kong Bill of Rights.

16.  In the latter, the applicant reiterated his fear and the alleged violation of his right to family life if refouled.

Legal principles

17.  Order 59, Rule 15 of the Rules of the High Court (Cap 4A) empowers this Court to grant an extension of time for filing a notice of appeal.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] – [8], we would treat the present application as an renewed application for extension of time.

18.  In exercising its discretion to extend time for appealing, this Court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding if an extension of time is granted, and the degree of prejudice to the other party.  Where the delay is substantial and not wholly excusable, the applicant must show a real prospect of success on the merits, not merely a reasonable prospect of success: see Tang Chai On v Tang Sing Ki (supra) at [9].

19.  The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif[2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard[2019] HKCA 168; and Re Irshad Muhammad[2018] HKCA 864 at [16].

20.  The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration[2018] HKCA 524 at [14]; Chy Md Fayej Ahamad v Torture Claims Appeal Board[2019] HKCA 311 at [16] – [19]; and Halim Abdul v Kay Ransome[2019] HKCA 354 at [20]. 

Discussion

21.  We agree with the Judge that the delay of two and a half months in bring an appeal was substantial.  In this application, the applicant does not challenge the Judge’s finding that his explanation of the delay was unacceptable.

22.  Having carefully considered the documents available before us, we are of the view that there is no prospect of success in the intended appeal. The applicant failed to identify any error on the part of the Judge in refusing him grant to apply for judicial review.  As explained in the authorities referred to in [20] above, the repeated assertions of the fear do not constitute a valid ground of appeal.

23.  As the Adjudicator rightly pointed out at [64] of her decision, the right to family life guaranteed under the Hong Kong Bill of Rights did not constitute a ground for non-refoulement protection in Hong Kong.  This is confirmed in the recent decision of the Court of Final Appeal in Comilang & Anor v Direvctor of Immigration[2019] HKCFA 10.

24.  In our view, the applicant’s intended appeal is hopeless. It is futile to extend the time for him to prosecute it.  Accordingly, we refuse the application for leave to appeal out of time.  The applicant’s summons dated 4 February 2019 is dismissed.