RE ABAKWAM OBINNA alias KWESI REMIGIUS

CACV 308/2022, [2023] HKCA 578

On Appeal From [2022] HKCA 1835

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 308 OF 2022

(ON APPEAL FROM HCAL NO 99 OF 2019)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.  On 16 December 2022, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s judgment of 8 December 2022 (“the Judgment”) ([2022] HKCA 1835). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan dated 22 July 2022, refusing his application for leave to apply for judicial review ([2022] HKCFI 2236).

2.  The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”) provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal if 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.

4.  In his Notice of Motion, the applicant alleged that there were errors and/or procedural unfairness or irrationality in the decisions of the Director, the Board and the Court, as they failed to take into proper consideration the basis that he would harmed or killed just like his mother by his mother’s creditor, who was an influential politician, upon his return to his home country.  He claimed that his life would be in great danger owing to the lack of state protection and that internal relocation would be untenable.  He further reiterated that he suffered a partial stroke and was currently receiving treatment in Hong Kong.  He claimed that his critical health condition should override or supersede his non-refoulement claim and review application since his health should take priority over whether or not he should be allowed to remain in Hong Kong.

5.  Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 21 December 2022.  In those submissions, he repeated the allegations as stated in his Notice of Motion and again stated that he would be harmed or killed by his mother’s creditor and that there were fear and life-threatening situations in Nigeria.  He also claimed that the lack of legal representation was procedurally unfair to him.

6.  In our view, his application is wholly without substance.  His Notice of Motion and written submissions essentially repeated those grounds he had previously submitted before this Court which had already been considered and rejected by this Court: see the Judgment at [11] ‑ [22].  It is well established that the Court of Appeal will not allow an application of this nature to be deployed as an occasion for re-running the arguments which had already been canvassed at the appeal: Ho Sin Ying v Chan Yui Ling & Another (unreported, CACV 221/2013, 14 November 2014) at [2] and [3]. More importantly, he did not identify any specific error in the Judgment with sufficient particulars.  As to his allegations concerning the lack of legal representation, this was not raised before the Deputy Judge or this Court in his earlier appeal.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it; nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal: see Re Orense Marian Masangkay[2022] HKCA 33 at [7] and Re Dandiwal Sandeep Singh[2021] HKCA 870 at [7].  In any event, high standards of fairness also do not entail free legal representation at all stages of the proceedings or interpretation service being made available at any time the applicant desires: Barroga Escolastica Tejero[2021] HKCA 279 at [3].  As such, nothing set out in his Notice of Motion or written submissions can be considered as viable grounds of appeal to the Court of Final Appeal.  Accordingly, the applicant’s intended appeal must fail.

7.  Further, even taking his case at its highest, his allegations are fact‑specific and do not relate to any question of great general or public importance.

8.  The applicant has therefore failed to identify any question of great general or public importance, as required by section 22(1)(b) of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b) of the HKCFAO.

9.  For these reasons, we dismiss the Notice of Motion.

CACV 308/2022

[2022] HKCA 1835

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 308 OF 2022

(ON APPEAL FROM HCAL NO 99 OF 2019)

_______________

_______________

_______________

J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) set out in the Form CALL-1 dated 22 July 2022, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 2236).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 28 December 2018 (“the Board’s Further Decision”), dismissing the applicant’s petition against the decision of the Director of Immigration (“the Director”) dated 31 March 2017 (“the Director’s Further Decision”) rejecting the applicant’s non-refoulement claim on the basis of BOR2 risk[1].

3.  We heard the appeal on 24 November 2022.[2]  After the hearing, we reserved our judgment to be handed down in writing.  This is what we do now.

Background

4.  The applicant claimed to be a national of Nigeria and Ghana.  He entered Hong Kong in 2004 under a Ghanaian passport of another identity and overstayed.  He was arrested by the police on 16 May 2012.  On 30 July 2012, he was convicted of the offence of breach of condition of stay by overstaying and taking up unapproved employment in Hong Kong and sentenced to prison for six months.  Upon his completion of imprisonment on 15 September 2012, he was referred to the Immigration Department.  He then raised a torture claim on 20 November 2012, on the basis that he would be harmed or killed by his mother’s creditor, who was the Chairman of the local government of his home area and a member of the ruling party the People’s Democratic Party, over her unpaid debts.  He claimed that when they were unable to repay the loan, his mother’s creditor sent men to threaten and assault them, and on one occasion shot and killed his mother.  He then fled to Ghana and later arrived in Hong Kong in 2004.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [1] ‑ [4] of the Leave Decision.

5.  By a Notice of Decision dated 31 October 2014 (“the Director’s Decision”), the Director rejected the applicant’s non‑refoulement claim.  His decision covered all applicable grounds including torture risk^[3], BOR3 risk^[4] and persecution risk^[5].  Taking into account all relevant circumstances, the Director considered that his non‑refoulement claim was not substantiated.

6.  The applicant then appealed against the Director’s Decision to the Board on 12 November 2014.  The applicant attended the hearing together with his legal representatives before the Board on 9 October 2015 but he refused to give oral evidence.  Having assessed the evidence, the Board found that the applicant’s evidence was not truthful, that some of his answers were contradictory and that he was not someone who genuinely tried to seek refoulement protection.  The Board further assessed the level of risk of harm from his mother’s creditor and followers upon his return to Nigeria or Ghana as low.  The Board also reviewed the Country of Origin information (“COI”) and considered that state protection would be available for the applicant in Nigeria.  The Board further considered that state protection and internal relocation would be available to the applicant in either Ghana or Nigeria (except in Lagos).  The Board thus considered that the applicant had failed to substantiate his claim on the applicable grounds and accordingly, dismissed his appeal on 3 January 2017 (“the Board’s First Decision”).

7.  Meanwhile, on 16 March 2017, the Director invited the applicant to submit any additional materials or facts which may be relevant to his non-refoulement claim on all applicable grounds including BOR2 risk.  On 28 March 2017, the applicant wrote to the Director, in essence, repeating and relying on the same basis of claim under the threat from the same enemy as mentioned in his non-refoulement for his assessment under BOR2 risk.  After considering those information, the Director further rejected his non-refoulement claim on BOR2 risk by way of the Notice of Further Decision dated 31 March 2017.

8.  On 13 April 2017, the applicant lodged a petition against the Director’s Further Decision to the Board.  The Board noted that his grounds of appeal were essentially the same as those raised in his letter dated 28 March 2017 to the Director.  Given that the facts of the applicant’s claim under BOR2 risk had already been decided in the Board’s First Decision, the Board dismissed his petition on 28 December 2018 and confirmed the Director’s Further Decision.

The Leave Decision

9.  On 10 January 2019, the applicant applied for leave to apply for judicial review against the Board’s Further Decision.  In his Form 86 and supporting affidavit, the applicant did not state any ground of review.  In his written submissions lodged on 2 August 2021, the applicant repeated his claim of fear of harm from his mother’s creditor and asserted that the Board had failed to consider the then critical situation in Nigeria.  He also claimed that forceful deportation would violate his rights under BOR2 and BOR3.  On 24 May 2022, the applicant attended an oral hearing before the Deputy Judge and an Igbo interpreter was present to provide language assistance.

10.  By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review.  His reasons were set out at [11] ‑ [15] of the Leave Decision:

“11. On 10 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, but no ground for seeking relief was given in his Form or in his supporting affidavit of the same date to which he just attached all the documents from his appeal bundle before the Board, while in his later written submissions he merely repeated his claim of fear of harm from his mother’s creditor as before but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non‑refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the 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; Re Mudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400; and Nupur Mst v Director of Immigration[2018] HKCA 524.

13. In the Applicant’s case, the fact is that on the factual basis of his own case at the highest that it was a private monetary dispute without any official involvement that his claim simply does not engage the BOR 2 ground, and as it has also been established by both the Director and the Board in their earlier decisions that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nigeria or anywhere in Ghana, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14. 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 under all the applicable grounds.

15. 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.”

The Appeal

11.  On 8 August 2022, the applicant filed a Notice of Appeal together with a supporting affidavit in support of his appeal against the Leave Decision.  No ground of appeal was provided in his Notice of Appeal.

12.  In exhibit (1) to his supporting affidavit, the applicant contended that the Leave Decision was unfair and irrational as the Deputy Judge had failed to carefully address and consider the wrong views taken by the Director and the Board for which they had failed to apply the law in assessing his non-refoulement claim under BOR2 risk and BOR3 risk.  The applicant repeated his claim that his mother’s creditor was an influential politician in Nigeria, and that the state and authorities would not protect him due to widespread corruption amongst officials.  He also asserted that there was major security threats and mayhem in Nigeria given the present state of insecurity and that he would be killed or harmed by his mother’s creditor upon his return to Nigeria.  He further claimed that he was diagnosed with a partial stroke after becoming unconscious on the street on 29 May 2022, causing his right-hand to tremble intermittently and affecting his speech and movement.  He contended that he was hospitalised for four weeks and was undergoing therapeutic rehabilitation and occupational therapy. In support, he sought to rely on a new discharge slip of Pok Oi Hospital which was printed on 16 June 2022 (“the Discharge Slip”).

13.  Pursuant to the directions made by the Registrar of Civil Appeals on 30 August 2022, the applicant lodged his written submissions on 13 September 2022.  In those submissions, he claimed that his life would be in serious danger upon his return to Nigeria and that state protection and internal relocation would not be available to him.  He further claimed that the Deputy Judge had been procedurally unfair as he had overlooked or ignored to give a proper direction to his case as to why the Board had failed to apply the law.  The applicant then contended that his mother’s creditor is still a politician and an influential personality in the Nigerian government as well as a member of the People’s Democratic Party and a member of the Loan-shark groups in Nigeria.  He asserted that the present state of insecurity in his country is alarming and that many Nigerians from his region are dying in thousands every month.  He also reiterated his health condition and claimed that he was experiencing serious physical challenges.

14.  We heard the appeal on 24 November 2022.  An Igbo interpreter was present to provide language assistance.  During the hearing, the applicant submitted that it would not be safe for him to return to his home country and that he is currently sick with kidney and heart problems.  He also contended that his wife is ill and currently hospitalised and that he wants to have time to make sure things are alright.

Discussion

15.  The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration[2018] HKCA 524 at [14].

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’s decision, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

17.  At the outset, nowhere in his Notice of Appeal or written submissions did the applicant identify with specific particulars how the Deputy Judge had erred in reaching the Leave Decision.  Accordingly, his submissions are plainly not proper grounds of appeal.

18.  Second, it is noted that his application for leave to apply for judicial view was only against the Board’s Further Decision, which predominately focused on the assessment of his non-refoulement claim under BOR2 risk.  Accordingly, his contention that the Board and the Judge failed to apply the law in assessing his non-refoulement claim under BOR3 risk fell outside the scope of his intended judicial review, as his non‑refoulement claim under BOR3 risk was assessed in the Board’s First Decision, to which no application for extension of time for leave to apply for judicial review had been made by the applicant.

19.  Insofar as the Board’s Further Decision is concerned, we noted that the Board dismissed the applicant’s petition on the basis that the facts submitted had already been determined by the Board and applying the doctrine of res judicata, could not be re-litigated: see [11] ‑ [12] of the Board’s Further Decision.  On the face of it, it might appear that the Board had not assessed those facts on the separate basis of the BOR2 risk. That said, noting that the factual basis relied on by the applicant for the assessment of his BOR2 claim were the same as those under his previous appeal before the Board, and further noting the factual findings of the Board in its first decision, it is clear that the applicant’s claim under BOR2 risk must also fail.  In the circumstances, we refuse to exercise our discretion to grant leave to apply for judicial review to the applicant in relation to the Board’s Further Decision as it would be academic to remit the decision back to the Board for reconsideration.

20.  Third, and in any event, his contentions are all bare, vague and unsupported by specific particulars or evidence.  General assertions of his fear if refouled do not constitute proper grounds of appeal.  More importantly, as repeatedly emphasised by the Court of Appeal, it is well‑established that the assessment of evidence, COI and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers.  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: Re Md Shohel Sheak[2018] HKCA 714 at [13] and Re Limbu Birkhaman[2019] HKCA 50 at [11].  Accordingly, we see no basis to interfere with the Leave Decision.

21.  Lastly, insofar as the applicant’s medical condition and his wife’s alleged illness are concerned, they are simply not relevant for the present purpose, as these are factual matters that occurred after the Board’s Further Decision.  Thus, this Court will not take them into account in respect of the applicant’s challenge against the Board’s Further Decision.  In any event, although the applicant claimed to have suffered from partial stroke and was hospitalised for four weeks, the Dispatch Slip adduced by him only showed a diagnosis of essential hypertension and convulsion and prescription of various medications for ten weeks.  On its surface, the Dispatch Slip did not show that he had suffered any partial stroke or that he had been admitted to hospital for four weeks.  As to his wife’s alleged illness, we noted that the applicant did not furnish any medical or documentary proof in support of his bare contention. Accordingly, those submissions must fail.

22.  For the above reasons, the applicant’s appeal has no merit and we dismiss the appeal.