Ofuka Benedict Sally v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 985/2017

[2019] HKCFI 1313

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 985 OF 2017

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D E C I S I O N

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Introduction

1.This is an application dated 5 March 2019 for appeal from my decision of 7 December 2018 refusing an extension of time for leave to apply for judicial review.  The applicant had 14 days in which to apply to appeal that decision.  He did not do so.  He now requires leave to extend time to appeal against that order.  The applicant attended court without the assistance of an interpreter.  His English is more than competent but he was informed that if at any stage he felt he required assistance then the matter would be adjourned.

Procedural background

2.The applicant is a claimant under Article 3 of the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment.  He entered Hong Kong legally on 4 March 2008 and thereafter overstayed.  He submitted a non‑refoulement claim form on 24 August 2015 and was interviewed by the Director of Immigration (“the Director”) on 20 October and 11 December 2015.  The Director dismissed his claim under all heads, by Notice of Decision on 5 May 2016 and Notice of Further Decision on 24 February 2017.  He appealed those decisions to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Kevin Edward Ball (“the Adjudicator”), heard him on 2 and 6 March 2017.  The Adjudicator refused his appeal on 26 July 2017.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 30 November 2017, which was out of time by 35 days and he did not request an oral hearing.  The matter was therefore considered on the papers.  His application for extension of time for leave to apply for judicial review was refused on 7 December 2018.  He had 14 days from that date to appeal that decision which would have expired on 21 December 2018.  By way of summons dated 5 March 2019, he seeks leave to appeal out of time.

4.In order to obtain that leave, an application must be made promptly and it must be supported by an affirmation or affidavit deposing to any facts relied upon by the applicant and giving a full account of and explanation for the whole of the delay since time expired.  Whilst the granting of an extension of time is entirely within the discretion of the court, the applicant is required to explain the reasons for his delay as this forms part of the consideration of whether there is good reason to allow an extension of time.  The applicant maintains that he did not receive the Form CALL‑1 and Order on time.  The court file suggests that it was served upon the applicant at Room A, 7/F, 232 Yu Chau Street, Sham Shui Po.  This was the address provided to the court by the Director (amended due to a typing error) and the applicant has confirmed that this is his address.  That is not the end of the matter.  The applicant would have been reporting to the Immigration Department upon a regular basis.  He has informed the court that he reported every two weeks.  He maintains that he was not informed of the decision of this court until March 2019, at which time he “immediately” came to the court to collect the Form CALL‑1 and Order.  Given that the applicant must have attended at Immigration at least five times in the intervening period, I find it hard to believe that he was not informed of his position until March 2019.  Given also, that his summons is dated 5 March 2019, either his English and understanding of the law is so good that he was able to file his summons immediately or his suggested chronology of events is not accurate.  This is made out by the praecipe which indicates that the applicant paid the fees on 21 February 2019 but did not collect a copy of the Form CALL-1 and Order until 5 March 2019.  In any event, I have given the applicant the benefit of the doubt on both issues and have considered whether there is good reason to allow this matter to go to the Court of Appeal.

Conclusion

5.The applicant has now been in Hong Kong since 2008.  I have considered his underlying application.  As with his application before the court for extension of time for leave to apply for judicial review, the applicant has submitted no grounds for why this court should grant an extension of time to appeal.  I note he is a graduate and a mature man.  He was an active member of a human rights group in Nigeria and, as such, would be more likely than others to understand the non‑refoulement procedure and the consequences of non‑compliance.  The allegations he made in his original claim in respect of an incident in 1993, were far reaching and allegedly grievous, yet he was released after three days and required only treatment in a local clinic and not hospitalisation.  He believed himself to be on a government wanted list and yet managed to operate his business in Lagos after his detention in 1993 and remained there unharmed until 2007.  He says he was arrested during that 14‑year period on three occasions but was released unharmed on each occasion.  He managed to travel to Ghana in 2007 and then to Hong Kong in 2008 without incident.  He says that he left Ghana because of financial difficulty and not because of his activism.  Indeed, despite being a human rights activist he did not seek to make a claim in Hong Kong until after his arrest for overstaying on 25 May 2009.  All of this was documented by both the Director and the Adjudicator and he makes no complaint about that finding save that he disagrees with the outcome.

6.So far as the procedure adopted was concerned, the applicant was heard by both the Director and the Adjudicator, who noted that he spoke and understood English but nevertheless had the benefit of an Igbo interpreter.  He makes no complaint about that.  They heard him and provided him with an opportunity to address them.  He makes no complaint about that.  Nor does he suggest that there was any evidence which he wished to put before them, which he was unable to adduce.  He does not suggest that they were ignorant of the situation in Nigeria or that there was country of origin information (“COI”), which was not relied upon.  He makes no complaint of bias or unreasonableness.  He simply does not agree with their decisions.

7.The reason for the rejection of the applicant’s claim was explained to him, as was the difference between the function of the Director and the TCAB, as compared with the function of the High Court in judicial review.  He was reminded that the Adjudicator noted that the applicant’s claim had “evolved” over time and that the account given to the Adjudicator was markedly different from that given to the Director. I note that the Adjudicator also found that his evidence was internally and externally inconsistent with available materials and whenever tasked with a question, the applicant became vague and evasive.

8.There were no grounds of review provided to this court and this court was unable to extract any from the applicant during the hearing.  His underlying application for judicial review has no merit.  He has not provided an explanation for his delay in submitting his Form 86, but more importantly there was nothing from which the court could have ascertained that the applicant had a real prospect of success if leave to extend time were granted.  There has been no complaint before the court today as to that decision to refuse leave to extend time.  The applicant merely wishes the Court of Appeal to consider his situation afresh because his life is in danger in Nigeria.

9.Having considered the length of delay, reason for the delay and underlying merits of his application, it would not be in the interest of justice to grant an extension of time in all the circumstances of this case.

10.The applicant’s summons dated 5 March 2019 be dismissed.

The applicant appeared in person.