Nkwo Ikechukwu Leonard v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 315/2019

[2020] HKCA 372

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 315 OF 2019

(ON APPEAL FROM HCAL NO 1701 OF 2018)

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Before:  Hon Yuen JA and Lisa Wong J in Court

Date of Hearing:  19 May 2020

Date of Judgment: 28 May 2020

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J U D G M E N T

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

Introduction

1.1.This is an appeal by Mr. Nkwo Ikechukwu Leonard (“the appellant”) from an order of DHCJ Woodcock (“the Judge”) given on 24 June 2019 dismissing his application for leave to start judicial review proceedings.  The Judge’s reasons for that order were given in the Judge’s observations set out in a document referred to as “CALL-1” (“the Judge’s Decision”)[1].    

1.2.The appellant had applied to the Judge for leave to start judicial review proceedings to quash the decision of the Torture Claims Appeal Board (“TCAB”) given on 8 June 2018 (“TCAB Decision”) disallowing the late filing of the appellant’s notice of appeal/petition filed on 15 December 2017 (“Notice of Petition”) against the Notice of Further Decision made by the Director of Immigration (“the Director”) dated 29 June 2017 rejecting the appellant’s non-refoulement claim under the head of BOR 2 risk[2] (“NFD”). 

1.3By a Notice of Decision dated 1 September 2016 made by the Director (“NOD”), the appellant’s claim for non-refoulement under the BOR 3 risk[3], persecution risk[4] and torture risk[5] was refused by the Director.  The appellant filed a late appeal/petition to the TCAB on 19 October 2016 against the NOD, but the late filing was not allowed by the TCAB.  

Background

2.The appellant is a national of Nigeria now aged 40.  He received 12 years of formal education in Lagos, obtaining qualification up to class 12.  He was previously employed by two companies in Lagos in clerical work.  On 17 February 2013, he arrived in Hong Kong as a visitor. He overstayed in Hong Kong since 4 March 2013 and was arrested by the police on 3 May 2013.  He raised his claim for non-refoulement by way of written representation dated 14 March 2014.  Subsequently, he submitted his non-refoulement claim form dated 1 April 2016. 

The appellant’s allegations

3.1.Put briefly, the appellant claimed that he would be harmed or even killed by his paternal uncle DN if he returned to Nigeria because his uncle coveted his father’s land which the appellant, as the eldest son, would inherit from his father upon his death.

3.2.The appellant alleged that from around 2006 until the beginning of 2012, he had been threatened by his uncle that he would kill him if he remained on the land.  The appellant and his family members, however, did not suffer any harm from his uncle prior to his departure from Nigeria for Hong Kong.  The appellant did not report his case to the police as he thought they were corrupt.

The Director’s Decision

4.The Director’s representative had an interview with the appellant.  The appellant had legal assistance to prepare his claim.  After the interview, the Director rejected the appellant’s claim for reasons set out in the NOD and the NFD given on 1 September 2016 and 29 June 2017 respectively.  The Director considered the appellant’s non-refoulement claim in respect of “BOR 3 risk”, “persecution risk”, and “torture risk” in the NOD and also assessed “BOR 2 risk” in the NFD.

The TCAB’s Decision

NOD

5.1.The appellant filed a late appeal/petition to the TCAB on 19 October 2016 against the NOD made by the Director which was not allowed by the TCAB ([2] of the NFD).

NFD

5.2.In respect of the NFD, the deadline for the appellant to file the appeal/petition expired on 17 July 2017.  The appellant filed the Notice of Petition to the TCAB on 15 December 2017 against the NFD which was about six months late. 

5.3.Pursuant to section 37ZT of the Immigration Ordinance (the “Ordinance”), the TCAB was required to make a preliminary decision on paper whether to allow the late filing of the appeal. 

5.4.In the TCAB Decision, the TCAB considered the relevant guidelines set out in the Petition Guide ([6]-[10], [15]-[16]) including section 37ZV of the Ordinance, and the 3 stage approach in The Secretary of State for the Home Department v Begum (2016) EWCA Civ 122 at [11]-[12]. 

5.5.The appellant adduced no documentary evidence [9].  The TCAB found the appellant’s reasons for being late were incomprehensible even though he had been formally educated for 12 years and had worked in clerical positions.

5.6.In the circumstances, the TCAB concluded that the late filing by the appellant was an extraordinary delay and it was not satisfied that the appellant had shown any special circumstances pursuant to section 37ZT(3) of the Ordinance [21]. The appellant’s late filing of the Notice of Petition was disallowed by the TCAB [22].

Application for leave to start judicial review

6.The appellant then took out an application in the High Court for leave to start judicial review proceedings to quash the TCAB Decision.  He did not set out his grounds of judicial review in the Form 86.  In his supporting affirmation filed on 21 August 2018, he exhibited a copy of the Notice of Appeal/Petition dated 26 July 2018 providing reasons for his late filing of the Notice of Petition dated 15 December 2017 but these reasons were different from those he submitted to the TCAB.

The Judge’s Decision

7.The Judge considered the appellant’s application on the papers as he did not request an oral hearing.  As mentioned earlier, the Judge refused leave for the reasons set out in [15] - [19] of CALL-1 ([2019] HKCFI 1548):

“15. In considering this notice of application for leave to apply for judicial review I am to consider whether the adjudicator has made any error of law or conducted procedures whilst failing to comply with a high standard of fairness as required by law in his determination of the applicant’s late filing of the notice of appeal.

16. The applicant gave him no reasonable explanation for the delay. The reasons that the applicant now submits would support an application for late filing cannot be considered by this court in this application nor would I consider the TCAB adjudicator’s determination afresh. This is not a rehearing of his application.

17. I have considered with rigorous examination and anxious scrutiny the papers and grounds of this application. The adjudicator’s determination was based on the rules of procedure and supported by an authority which validated his determination.

18. There are no grounds that show there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

19. In my judgement, there are no grounds that are reasonably arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Cheung & Anor (2007) 10 HKCFAR 676, paras 14‑17.  I refuse this application for leave to apply for judicial review.”

Appeal to Court of Appeal

8.1.By a Notice of Appeal filed on 5 July 2019, the appellant appealed the Judge’s order to this court.  He stated the following in his Notice of Appeal:

“am appealing on the ground that this case should be overturn because my life is in danger my uncle want to kill me. I am appealing to overturn the judgment. Because my life is in danger.”

8.2.In the supporting affirmation filed by the appellant on 15 August 2019, he basically repeated his affirmation filed on 21 August 2018 in support of the Form 86 together with the same exhibits.

Legal Principles

9.The position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

9.1.The primary decision makers in relation to an appellant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the TCAB.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the appellant’s credibility in respect of his individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the appellant’s personal circumstances as found after the hearing, as well as relevant information regarding the appellant’s country of origin.  

9.2.When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the TCAB, the judge’s position is not the same as that of the Director or the TCAB.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the TCAB due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the TCAB.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the TCAB’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration[6]and we will not repeat them here.

9.3.Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the appellant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong[7].  Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall[8]are satisfied. Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court.

Skeleton Submissions

10.1.After filing his Notice of Appeal, the appellant was given directions by the Registrar of Civil Appeals to file skeleton submissions.  The appellant filed his skeleton submissions on 22 January 2020 which was late by 1 day.  That is a minor delay and we have considered his submissions. 

10.2.In his submissions, he mainly repeated his claim about the land dispute with his uncle and that he would be killed by his uncle if he returned to his country. He repeated that there is no state protection and internal relocation is not a viable option for him in Nigeria as his uncle could use black magic against him, which he considered a real threat even though he is Christian.  He stated (apparently for the first time) that after he came to Hong Kong in February 2013, he learnt that his uncle has killed his other siblings in order to take over his father’s land.  However, this allegation was not made on affirmation and was completely lacking in particulars.  At the hearing, he claimed that he received this information two years ago but he could not explain why he did not raise this earlier in the course of these proceedings which had occurred within these two years.  It is also inconsistent with his previous allegations that his younger brothers did not receive any threats from DN as it would be he, as the eldest son, who would inherit the land.  Since this allegation was not supported by any affirmation or other evidence, but was raised in written submissions only, we decline to accept this bare assertion.  

10.3.Further, he complained that the decisions made by the Director and the TCAB are unfair to him as they failed to recognize the uncivilized position in Nigeria and instead, they requested for evidence from him to prove his claim.

10.4.It is important to note that the TCAB had disallowed his petition on the ground of unexplained delay and the absence of special circumstances.  It was not a decision on the merits of his case, and so the judge needed not go into them.  The judge was entitled to reject the reasons he gave her for the delay as he had not explained why he had not advanced them before the TCAB.

Discussion

11.Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the Judge is present in this case. 

11.1.The appellant’s grounds stated in the Notice of Appeal do not constitute viable grounds of appeal.  The focus of an appeal to this court is the correctness of the Judge’s Decision.  The appellant failed to identify any error in the reasons of the Judge’s Decision.  As analyzed by the Judge in [15]-[18] of the Judge’s Decision, his grounds for judicial review provided in his affirmation in support are not reasonably arguable and the intended judicial review has no reasonable prospect of success.

11.2.In the Form 86 and the supporting affirmation filed by the appellant, he did not show that there was an error of law made by the TCAB in rejecting his very late petition.  In any event, the Judge had considered all the papers and found that there was no procedural unfairness or failure to adhere to a high standard of fairness by the TCAB.  

11.3.We agree with the Judge that the appellant’s intended judicial review has no reasonable prospect of success.

12.We can discern no error of law, nor can we see any relevant matters which the Judge had failed to take into account, nor can it be argued that the Judge was plainly wrong in refusing leave to commence judicial review proceedings against the TCAB’s Decision.

Order

13.For the reasons set out above, this appeal must be dismissed.

The appellant, unrepresented, appeared in person