CACV 221/2024, [2025] HKCA 48
On Appeal from [2024] HKCFI 1298
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 221 OF 2024
(ON APPEAL FROM HCAL NO 1370 OF 2019)
________________________
BETWEEN |
| | RAYMOND PROMISE | Applicant |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD /
NON-REFOULEMENT CLAIMS PETITION OFFICE | Putative
Respondent |
| | and | |
| | DIRECTOR OF IMMIGRATION | Putative |
| | | Interested Party |
_____________________
| Before: | Hon Chow JA and Cheng J in Court |
| Date of Judgment: | 3 January 2025 |
_________________
J U D G M E N T
_________________
Hon Chow JA (giving the Judgment of the Court):
1. This is the Applicant’s appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 28 May 2024 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 18 August 2017, whereby the Board dismissed the Applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 24 June 2016 and 5 May 2017.
BACKGROUND
2. The Applicant is a national of Nigeria. He has a history of applying to the authorities in Hong Kong to seek asylum, but subsequently withdrawing his applications. He last arrived in Hong Kong on 20 June 2009 as a visitor using a Guinea passport in another name (Diallo Ibrahima), and was permitted to remain up to 27 June 2009. He overstayed illegally, and was arrested by the police on 28 July 2009. He lodged a torture claim on 30 July 2009, but sought to withdraw his claim on 12 April 2012. On 24 May 2012, he pleaded guilty to the offences of using a false travel document and making a false representation, and was sentenced to 12 months’ imprisonment. While in prison, he attempted to re-open his torture claim on 27 June 2012, but as he failed to submit a completed torture claim form, his torture claim was treated as withdrawn on 14 December 2012.
3. On 19 March 2013, he again lodged a torture claim, which was later taken as a non-refoulement claim upon the commencement of the Unified Screening Mechanism. He withdrew his non-refoulement claim on 28 July 2015, but requested to re-open it on 14 October 2015. His non-refoulement claim was re-opened on 14 January 2016. The basis of his claim was that, if refouled, he would be harmed or killed by his paternal uncle (Benjamin Agwunobi) over a land dispute in his home country. Details of the Applicant’s claim were summarised by the Judge at §§4-5 of the CALL-1 Form.
4. By a Notice of Decision dated 24 June 2016 and a Notice of Further Decision dated 5 May 2017 (collectively “the Director’s Decisions”), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: BOR 3 risk[1], persecution risk[2], risk of torture[3], and BOR 2 risk[4].
5. The Applicant appealed the Director’s Decisions to the Board. On 18 August 2017, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decisions (“the Board’s Decision”). The Board’s reasons for its decision have been summarised by the Judge at §§10-11 of the CALL-1 Form, as follows:
“[10] In essence, the Board rejected the factual matrices of the [Applicant’s] claim, namely it was not satisfied that the land dispute or the threats from Benjamin or Sabastine ever existed [59]. The [Applicant] was not able to even pinpoint the location of the alleged land purportedly inherited from his father, nor was he able to demonstrate he had taken any steps to identify the land [94] and [95]. He further could not explain why Benjamin would need to kill him if Benjamin has been occupying it for some four decades [97]. He also deposed, for the first time at the hearing, that he was threatened when he was repatriated in 2004. However, no explanation for this discrepancy against his written record was given [100]. The Board also noted the behavior of the [Applicant], ie his repeated withdrawal and reinstatement of his non-refoulement claim, cast further doubt on the genuineness of seeking asylum [102] – [107]. Having considered the evidence, the Board concluded he was a mendacious witness and there was no credence attached to the alleged land dispute nor to the threats from Benjamin [108].
[11] In assessing the individual grounds of non-refoulement protection, the Board found there was no real risk of the [Applicant] under Persecution risk [110] – [112], BOR 2 and 3 risks [113] and Torture risk [114] and [115]. In light of this, it was unnecessary for the Board to consider the issue of internal relocation [116].”
THE JUDGE’S DECISION
6. On 21 May 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground for seeking relief was given in the Form 86 or in his supporting affidavit of the same date.
7. On 28 May 2024, the Judge refused to grant to the Applicant leave to apply for judicial review for the following reasons:
“[15] As mentioned in paragraph 1, this [Applicant] is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. He has given no explanation for his delay. Nevertheless, I shall first consider the merits of the [Applicant’s] case.
[16] The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the [Applicant’s] appeal. The Court will not usurp the fact finding power vested in the Director and the Board…
[17] The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the [Applicant] said that he did not consider that the Board was wrong in its decision. However, he submitted that he is now married in Hong Kong with 3 children, respectively 8 years old, 3 years and 4 months old. Hong Kong is his home; and if he returns to his country, he may be politically tortured.
…
[19] The Board, for the reasons stated in paragraph 10 above, rejected his evidence on the facts of his claim and found that there was no evidence to show that the [Applicant] will be subjected to the risks as claimed if he returns to his country. There is no valid ground from the applicant to challenge the Board’s Decision. There is no reason that this Court should interfere with the Board’s Decision.
[20] The [Applicant] fails to show that he has any realistic prospect of success in his proposed judicial review.”
THIS APPEAL
8. In his Notice of Appeal dated 4 June 2024, the Applicant stated the following:
“I am disagree with the decision maker authorities such as Director of Immigration as well as the decision made by the Adjudicator of Torture Claim Appeal Board. I do not think my case determined fairly.” [sic]
9. The Applicant has failed to lodge written submissions in support of his appeal in accordance with the directions given by the Registrar of Civil Appeals on 14 October 2024. Accordingly, he is deemed to have waived the right to have an oral hearing of his appeal and elected to have his appeal disposed of on paper. Having considered the documents before us, we consider that it is appropriate to deal with the Applicant’s appeal on paper without an oral hearing.
DISCUSSION
10. Under Order 53, Rule 4 of the Rules of High Court, Cap 4A, an application for leave to apply for judicial review shall 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.
11. There was a substantial delay of over 18 months by the Applicant in seeking leave to apply for judicial review in the present case. He has not offered any explanation for the delay.
12. As for the merits of the appeal, the Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration[2018] HKCA 524, at §14. In particular, in an appeal against refusal of leave to apply for judicial review in a non-refoulement case, 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. The court’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration[2018] HKCA 524 at §14(6)).
13. Further, the assessment of evidence, country of origin information, 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: Re Kartini[2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.
14. Neither the Applicant’s disagreement with the decisions of the Director and/or the Board, nor his general complaint of unfairness without particulars, can constitute a valid ground of appeal.
15. The Applicant has failed to identify or show any error in the Judge’s decision refusing to extend time for him to apply for leave to apply for judicial review, or grant leave to apply for judicial review. We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the Order.
16. The Applicant’s appeal against the Order has no merit and is dismissed.
(Anderson Chow)
Justice of Appeal | (Yvonne Cheng)
Judge of the Court of
First Instance |
The Applicant, acting in person
[1] 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.
[2] 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.
[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[4] This refers to the risk of being arbitrarily deprived of his life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.