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CHUKWUEMEKA NDUBISI ANTHONY v. TOTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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[2021] HKCA 1016-EN-2021-07-23

CHUKWUEMEKA NDUBISI ANTHONY v. TOTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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CACV 550/2020

[2021] HKCA 1016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 550 OF 2020

(ON APPEAL FROM HCAL NO 1727 OF 2018)

________________________

BETWEEN
	Chukwuemeka Ndubisi Anthony	Applicant
	and
	Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before: Hon Kwan VP, Cheung JA and Chu JA in Court

Date of Written Submission: 4 June 2021

Date of Judgment: 23 July 2021

________________________

J U D G M E N T

________________________

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

1. This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP, Cheung JA and Chu JA) handed down on 13 May 2021 ([2021] HKCA 676). The Court of Appeal rejected his appeal against the decision of Deputy High Court Judge K W Lung dated 21 May 2020 ([2020] HKCFI 874) refusing to grant extension of time for the applicant to apply for leave to apply for judicial review concerning his non‑refoulement claim.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 25 May 2021 that the Notice of Motion shall be determined on paper only without an oral hearing. The applicant lodged his written submissions on 4 June 2021. Having considered his submissions, we consider it appropriate to determine this application on paper.

3. The applicant is a national of Nigeria. He came to Hong Kong as a visitor on 16 October 2015. He subsequently overstayed and was arrested by the police on 4 February 2016. He lodged his non‑refoulement claim on 15 April 2016 on the basis that he will be harmed by his uncle if he returns to Nigeria because he was robbed on his way to put money into a bank for his uncle and he is unable to pay back the money to his uncle.

4. His non-refoulement claim was rejected by the Director of Immigration (“the Director”) on 9 September 2016 and 5 June 2017. His appeal against the Director’s decisions was dismissed by the Torture Claims Appeal Board(“the Board”) on 24 October 2017.

5. He filed a Form 86 on 23 August 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board, after the expiry of the 3-month period for taking out the leave application. DHCJ K W Lung refused to grant extension of time and dismissed the leave application on 21 May 2020.

6. On 4 June 2020, the applicant applied for leave to appeal against the judge’s decision. On 29 September 2020, DHCJ C P Pang considered it as an application for extension of time to appeal and granted an extension of 14 days for the applicant to file his notice of appeal^{^[1]}.

7. On 12 October 2020, the applicant filed a notice of appeal against the decision of DHCJ K W Lung. The appeal was dealt with by the Court of Appeal on paper as the applicant consented to the disposal of his appeal on paper by the Court of Appeal without an oral hearing. The appeal was dismissed by the Court of Appeal on 13 May 2021. The applicant filed a Notice of Motion on 21 May 2021 for leave to appeal to the Court of Final Appeal.

Grounds of appeal

8. The applicant stated his grounds of appeal in the Notice of Motion which may be summarized as follows:

(1) His life is in danger;
(2) There are errors in both the decisions of the Director and the Board as they did not observe the extent of risks in his non‑refoulement claim;
(3) The currency exchange rate of the money involved is higher now and he does not have this amount of money. He has no job in Hong Kong;
(4) There is war in his country now.

9. He made further contentions in his written submissions which may be summarized as follows:

(1) His uncle will expect him to pay back the money otherwise his uncle will kill him. Because of inflation and the increase in exchange rate, the money he has to repay has increased by two times. It is impossible for him to get the money to repay his uncle;
(2) He lost his passport in Hong Kong so relocation is impossible;
(3) Nigeria is now under attack by terrorist groups. The Muslims in Africa want to Islamize Nigeria. He is a Christian so he may be killed by the Muslims in Nigeria. The battle is going on and the American and UK governments have granted asylum to his ethnic group as a result;
(4) The government of Nigeria is proscribing the people in Biafra as terrorists and killing the people there every day. The government is killing, abducting and destroying lives and properties;
(5) The applicant’s appeal was rejected because of the ‘unhealthy country of origin information’ the Director got about Nigeria which was posted by the Nigerian Muslim journalists to mislead the world. There is real risk should he return to Nigeria.

Analysis and disposition

10. 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.

11. Most of the applicant’s grounds have been sufficiently dealt with in the Court of Appeal’s judgment dated 13 May 2021. In the present application, the applicant failed to demonstrate that the Court of Appeal was wrong in rejecting his appeal. He repeatedly complained against the country of origin information relied on by the Director but he has not provided any evidence to rebut the Director’s findings. He has also failed to adduce any evidence or offer any explanation for the significant discrepancies in his own evidence identified by the Board to refute the Board’s findings against him.

12. He put forward some new grounds in his Notice of Motion and written submissions which were not raised in his previous application before the Court of First Instance or in the appeal before the Court of Appeal. For example, he contended that relocation is impossible because he lost his passport in Hong Kong and that there is war in Nigeria now. It is not open to the applicant to put forward these grounds for the first time at this late stage of the proceedings, well outside the time limit for bringing judicial review proceedings.

13. In any event, he failed to provide any supporting evidence to show that he cannot re-apply for a passport in Nigeria or that a passport is needed for internal relocation. Furthermore, he has not provided any reliable information, particulars or evidence regarding the war in Nigeria and the risk he will face.

14. Most importantly, the applicant failed to identify 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).

15. For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 21 May 2021.

(Susan Kwan)
Vice President

(Peter Cheung)
Justice of Appeal

(Carlye Chu)
Justice of Appeal

The Applicant (Appellant), acting in person

[1][2020] HKCFI 2440

CACV 550 /2020

[2021] HKCA 676

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 550 OF 2020

(ON APPEAL FROM HCAL NO 1727 OF 2018)

________________________

BETWEEN
	Chukwuemeka Ndubisi Anthony	Applicant
	and
	Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before:

Hon Kwan VP, Cheung JA and Chu JA in Court

Date of Written Submission:	19 February 2021
Date of Judgment:	13 May 2021

________________________

J U D G M E N T

________________________

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

1. On 21 May 2020, Deputy High Court Judge K W Lung refused to grant extension of time for the applicant to apply for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim and dismissed the leave application[1]. On 29 September 2020, Deputy High Court Judge C P Pang granted an extension of time[2] for the applicant to file a Notice of Appeal against the said decision. The applicant lodged a Notice of Appeal on 12 October 2020.

2. The applicant is a national of Nigeria. He is 29 years old. He came to Hong Kong on 16 October 2015 as a visitor. He subsequently overstayed and was arrested by the police on 4 February 2016. He lodged his non-refoulement claim on 15 April 2016 on the basis that he will be harmed by his uncle if he returns to Nigeria because he was robbed on his way to put money into a bank for his uncle and he is unable to pay back the money to his uncle.

3. The applicant consented to the disposal of this appeal on paper by the Court of Appeal. He lodged his written submissions on 19 February 2021 pursuant to the directions of the Registrar of Civil Appeals.

The Director’s decisions

4. By a Notice of Decision dated 9 September 2016, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on the grounds including torture risk[3], BOR 3 risk[4] and persecution risk[5].

5. Taking into account the nature and extent of the claimed injuries as well as the intensity and frequency of the adverse treatments the applicant faced from his uncle or his uncle’s people, the Director considered that the applicant’s uncle does not have an intention to seriously harm him and the level of risk of harm from his uncle upon the applicant’s return is assessed to be low. The Director further found that the applicant’s problem is a private dispute which has nothing to do with the Nigerian government or authorities. The Director also held that the availability of state protection and internal relocation alternatives further lowers or negates the perceived risk.

6. By a Notice of Further Decision dated 5 June 2017, the Director rejected the applicant’s claim on BOR 2 risk [6] in the absence of response from the applicant to the invitation to submit additional facts which may be relevant to his non-refoulement claim.

The Board’s decision

7. The applicant’s appeal against the Director’s decisions was heard before the Board on 29 June 2017. The Board found that the applicant is not a witness of truth as his oral evidence was extremely vague, he was unable to describe the events or circumstances in detail and his account was fundamentally and materially different from that given to the Director and the applicant could not account for the differences. The Board concluded that the applicant failed to establish any of the facts he has asserted save that he is a national of Nigeria. Thus, the Board rejected the appeal on 24 October 2017.

The intended judicial review

8. The applicant filed a Form 86 and an affirmation on 23 August 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board. His application was filed outside of the three-month requirement under the Rules of the High Court (Cap 4A) Order 53, rule 4.

9. He put forward the following grounds for his intended challenge:

(1)     The Director and the Board reached the decisions wrongly in assessing his claim. The decisions are unreasonable and unfair. The right to life must be protected from extra‑judicial killings such as what the applicant may face if he would be deported to his country. The Director failed to take into account or failed to give sufficient weight to such argument;
(2)     The corruption and incompetency of the administration in his country is still very serious;
(3)     The Director failed to attain high standard of fairness. If the applicant did not run away, he would certainly have been harmed by his uncle.

The judge’s decision

10. DHCJ K W Lung heard the application on 24 December 2019 and granted leave to the applicant to amend his Form 86 by deleting the Director as respondent and by adding the Director as an interested party instead.

11. The judge considered the applicant failed to show that the Board had committed any error in its application of the law to his case or in coming to its conclusion on the facts of the case. The judge held that the applicant is unable to show that he has any reasonable prospect of success in his intended judicial review and so he refused to grant extension of time and dismissed the leave application on 21 May 2020.

Grounds of appeal

12. The applicant stated as his grounds of appeal in the Notice of Appeal filed on 12 October 2020 that his life is in danger because his uncle wants to kill him and the court should consider this.

13. His further submissions in writing may be summarized as follows:

(1)     The applicant’s life is in danger in Nigeria as he is a Christian and the president of Nigeria is a Muslim who encourages the killing of Christians. Both the police and soldiers in Nigeria are killing Christians every day;
(2)     He will also face danger from his uncle because he does not have enough money to repay his uncle. His uncle is a very wealthy business man who has a close relationship with the government officials. The Nigerian government will not protect the applicant and he cannot relocate to any other country;
(3)     The Country of Origin Information relied on by the Director should be disregarded as most of the information was prepared by Muslim journalists while Christian journalists are no longer allowed to post correct reports in Nigeria.

Legal Principles

14. The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14.

15. 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 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.

16. 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.

Analysis and disposition

17. The Board did not accept the applicant’s claims as it found significant discrepancies in the applicant’s evidence for which the applicant failed to offer explanation. In the present appeal, the applicant has still not explained the discrepancies and has not provided evidence to refute the Board’s findings. He also failed to show any errors of law or procedural unfairness or irrationality in the decision of the Board.

18. The judge’s decision in refusing to grant extension of time and dismissing the leave application is well justified. The applicant failed to demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

19. For the above reasons, the appeal is devoid of merit. We therefore dismiss the appeal.

(Susan Kwan)
Vice President

(Peter Cheung)
Justice of Appeal

(Carlye Chu)
Justice of Appeal

The Applicant (Appellant), acting in person

[1] [2020] HKCFI 874

[2] [2020] HKCFI 2440

[3] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[4] This refers to 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] 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 and its 1967 Protocol.

[6] 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).