Case Detail

CAMP 263 /2019

[2020] HKCA 524

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 263 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 1050 OF 2017)

________________________

BETWEEN
	Nnoli Chukwudi Kenneth	Applicant
	and
	Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before: Hon Kwan VP, Barma JA and Au JA in Court

Date of Written Submission: 17 June 2020

Date of Judgment: 3 July 2020

________________________

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 20 May 2020^{^[1]} refusing to grant leave to appeal out of time against the decision of Campbell-Moffat J on 20 April 2019^{^[2]}. The judge had refused to grant leave to the applicant to seek judicial review of the decisions of the Director of Immigration (“the Director”) concerning the applicant’s non-refoulement claim and refused to grant leave to him on 4 September 2019^{^[3]} to appeal against her decision in April 2019 out of time.

2. We refused to grant leave to appeal out of time because we found the applicant’s delay inexcusable and he does not have any prospect of success in the intended appeal.

3. The applicant filed a Notice of Motion on 26 May 2020 for leave to appeal to the Court of Final Appeal.

4. On 28 May 2020, the Registrar of Civil Appeals directed the applicant to lodge a written submission on or before 9 June 2020 and upon compliance with the direction or on the expiry of the time for doing so, and unless otherwise directed by the Court of Appeal, the notice of motion shall be determined on paper without an oral hearing.

5. The applicant lodged a written submission in support of this application only on 17 June 2020. He explained that his lateness was due to the fact that he was unable to check his mail frequently and that he had to find someone to assist him to write his submission.

6. We think it appropriate to determine this application on paper and will proceed to do so, taking into consideration the applicant’s submission.

7. In the Notice of Motion, the applicant merely stated that the judgment is not correct, he did not get justice and the judges did not do a good job.

8. In his submission, he raised a number of contentions which may be summarised as follows:

(1) He is afraid that he might be harmed or killed by his creditor because he cannot repay the loan.
(2) Religious crisis is going on in his home country in Nigeria. His country is now killing Christians from Igbo tribes and he is from Igbo.
(3) The country of origin information used by the Director is wrong and misleading.
(4) Both the Director and the Torture Claims Appeal Board (“the Board”) acted unreasonably and were unfair by placing too much reliance on country of origin information. They failed to take into account his personal background, experience and pain of injury. The Director and the Board also failed to address the question of whether the Nigerian government has the capacity to provide adequate protection to him.

9. 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.

10. The applicant’s ground pertaining to the religious crisis in Nigeria was not raised in his previous applications in both the court below and in the Court of Appeal. It is not open to the applicant to put forward a new ground for the first time at this late stage of these proceedings, well outside the time limit for bringing judicial review proceedings. In any event, this ground is just a bare assertion without evidential basis.

11. The rest of his grounds are substantially the same as the grounds he raised to the Court of Appeal in his previous leave application. The Court of Appeal has already dealt with these grounds in the judgment of 20 May 2020. The applicant has not pointed out any error in the Court of Appeal’s judgment.

12. The applicant’s grounds of appeal do not constitute valid grounds for granting leave to appeal to the Court of Final Appeal. He has not identified any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

13. For the above reasons, we dismiss the application for leave to appeal to the Court of Final Appeal.

(Susan Kwan)
Vice President

(Aarif Barma)
Justice of Appeal

(Thomas Au)
Justice of Appeal

The Applicant, acting in person

[1] [2020] HKCA 277

[2] [2019] HKCFI 341

[3] [2019] HKCFI 2211

CAMP 263 /2019

[2020] HKCA 277

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 263 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 1050 OF 2017)

________________________

BETWEEN
	Nnoli Chukwudi Kenneth	Applicant
	and
	Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before: Hon Kwan VP and Au JA in Court

Date of Written Submission: 7 November 2019

Date of Judgment: 20 May 2020

________________________

J U D G M E N T

________________________

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

1. On 12 April 2019, Campbell-Moffat J refused the applicant’s application for leave to seek judicial review of the decisions of the Director of Immigration (“the Director”) concerning his non‑refoulement protection claim^{^[1]}.

2. On 4 September 2019, the judge refused to grant leave to the applicant to appeal against her decision out of time as she considered that it would not be in the interest of justice to grant an extension of time in all the circumstances of this case^{^[2]}.

3. The applicant took out a renewed application for leave to appeal against the judge’s decision out of time to the Court of Appeal on 21 October 2019.

4. The applicant is a national of Nigeria of 40 years old. He entered Hong Kong lawfully on 24 February 2011 and overstayed. He was arrested by the police on 22 September 2015. He submitted a non‑refoulement claim by written representations on 15 and 29 October 2015. He claimed that he would be harmed or killed by his creditor if he were to return to Nigeria.

The Director’s decision

5. By a Notice of Decision dated 20 May 2016 and a Notice of Further Decision dated 10 March 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds.

The Board’s decision

6. The applicant appealed against the Director’s decisions to the Board. The Board conducted a hearing on 13 June 2017. The Board held that the applicant is lacking in credibility. The Board also considered that the case is about a private loan which does not involve any harm or threat of harm instigated by anyone in the capacity of the state government. There is no evidence to show that the applicant has suffered “severe injury or serious harm” which would place him within the prescribed criteria and he is safe to live in Nigeria, at least in places other than in his home locality. As the applicant failed to establish his non‑refoulement case under all applicable grounds, the Board dismissed the appeal on 10 November 2017.

The intended judicial review

7. The applicant filed a Form 86 and an affirmation on 11 December 2017 to seek leave to apply for judicial review against the decisions of the Director.

The judge’s decision

8. The judge noted that the applicant did not state any grounds for his intended judicial review. As the decisions of the Director are not susceptible to judicial review once an appeal to the Board has been pursued by the applicant and dealt with, the judge considered the application as an application for leave to apply for judicial review of the Board’s decision.

9. The judge found that the Board did not set out the correct test when it found that the applicant had not suffered “severe injury or serious harm” in respect of persecution risk^{^[3]}, in that persecution risk is not “virtually the same” as BOR 3 risk^{^[4]} as stated by the Board. However, the judge considered that the facts of the applicant’s case have not established the basis for a claim under the head of persecution risk and the error of the Board in this regard does not make any difference to the outcome of his claim in the Court of First Instance or in the tribunal below.

10. The judge also reviewed the papers and assessed that there is no relevant error of law or procedure applicable to the facts of this case. There is also no evidence of procedural unfairness or failure to adhere to a high standard of fairness throughout.

11. The leave application was refused on 12 April 2019 as the judge considered that the applicant’s intended application for judicial review does not have realistic prospect of success.

The grounds of appeal

12. The grounds of appeal stated in the applicant’s written submissions may be summarized as follows^{^[5]}:

(1) Both the Director and the Board failed to attain a high standard of fairness in arriving at their decisions as there was no proper investigation. They did not understand the materials or country of origin information.
(2) His life in Nigeria is in danger because the law in Nigeria gives the creditor more power than the debtor. His creditor is connected with the government and has tortured many debtors. The police cannot protect him, there is no rule of law and corruption there is the worst apart from India.
(3) He borrowed a lot of money from his creditor and did not have money to repay. His creditor is a member of a political party which is now in power so the creditor can use his position to victimize him.

13. In his affirmation filed on 21 October 2019, the applicant stated that he did not receive the order at his address and his residence is in a public building where they collect mails in an open box. He also stated that he was searching for an interpreter.

Analysis

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

15. Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The judge’s order was made on 12 April 2019. The applicant took out a summons in the court below on 27 August 2019. He was late by more than four months. The delay is substantial.

16. The applicant explained that he did not receive the order at his address and he was searching for an interpreter.

17. The decision of the judge refusing the original leave application was sent to the applicant’s address as stated in his Form 86 by registered post on 12 April 2019 but the mail was unclaimed and returned. 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 or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran[2018] HKCA 439 at §15).

18. The applicant’s delay was inexcusable. In these circumstances, he must show a real prospect of success on the merits (Secretary for Justice v. Hong Kong & Yaumatei Ferry Co Ltd [2001] 1 HKC 125).

19. In assessing the merit of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14.

20. 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. Assessment of evidence and Country of Origin Information (“COI”) materials and risk of harm, state protection and viability of internal relocation is 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.

21. 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.

22. The applicant’s complaints against the Director and the Board have not been raised in the original leave application and he has not sought leave to put forward these new arguments. Therefore, such new arguments will not be entertained by the Court of Appeal.

23. In any event, his contentions are just bare assertions. The Board found that the applicant’s case concerns a private loan and that the applicant has not suffered severe injury or serious harm which would attain the prescribed requirement for torture risk^{^[6]}, BOR 2 risk^{^[7]} or BOR 3 risk. The applicant failed to provide viable evidence to refute the Board’s findings. He also failed to show that the judge had made any errors of law or had failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. The judge has reviewed the decision of the Board carefully and explained her reasons for refusing leave in her decision dated 12 April 2019. Her decision is well founded.

24. For the above reasons, the applicant does not have any prospect of success in the intended appeal. We therefore dismiss the summons filed on 21 October 2019.

(Susan Kwan)	(Thomas Au)
Vice President	Justice of Appeal

The Applicant, acting in person

[1] [2019] HKCFI 341

[2] [2019] HKCFI 2211

[3] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.

[4] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] These grounds were not raised in his previous application for leave for judicial review but some of these grounds were raised in the application for leave to appeal out of time made in the Court of First Instance: see [2019] HKCFI 341 §11 & [2019] HKCFI 2211 §5

[6] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[7] This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

NNOLI CHUKWUDI KENNETH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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