Re Victor Vitus Chizoba

CAMP 175/2020

[2021] HKCA 898

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 175 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 1697 of 2018)

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Before: Hon Cheung and Chu JJA in Court

Date of Judgment: 25 June 2021

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JUDGMENT

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

1.This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Woodcock (“the Judge”) dated 20 December 2019 refusing his application for leave to apply for judicial review.

2.The applicant has not filed any affirmation in support of his application, but he has lodged a written submission on 5 January 2021.  

3.Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the applicant’s summons and written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 21 March 2018 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 1 March 2017 rejecting his non-refoulement claim.

5.The applicant is a national of Nigeria aged 36.  He entered Hong Kong on 1 December 2012 and was given permission to remain as a visitor until 22 December 2012.  He overstayed and surrendered to the Immigration Department on 25 February 2015 and raised a non-refoulement claim. 

6.The applicant’s claim has two bases.  First, he fears harm from the extremist group, Boko Haram, because he is a Pentecostal Christian.  Second, he fears harm from people who had been kidnapping electoral officials during the 2007-2008 election because he had supported a Mr Fashola in his election campaign for the office of governor of Lagos.  The details of the applicant’s claim were set out in the decisions of the Director and the Board.  We will not repeat them.     

7.By his decision dated 1 March 2017, the Director rejected the applicant’s claim having regard to the torture risk[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] grounds.

8.The applicant’s appeal to the Board was heard on 7 February 2018.  By its decision dated 21 March 2018, the Board dismissed the appeal.  The Board found the applicant’s evidence contradictory and inconsistent over a wide range of matters, and was further contradicted or not supported by the country of origin information (COI).  It rejected the applicant’s evidence in its entirety, being of the view that he is not a witness of truth and has fabricated his claim in relation to both Boko Haram and his involvement in politics.  The Board held that there is no real risk of the applicant facing any of the prescribed forms of harm should he return to Nigeria, and concluded that he is not entitled to non-refoulement protection on any of the appliable grounds.

9.Under Order 53 rule 4(1) of the Rules of the High Court, 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 to extend the time for bringing the application. 

10.On 21 August 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  The application was late by 2 months. The applicant gave no explanation for the delay in his Form 86 or affirmation. He also did not set out any ground for seeking relief.  He only stated that the Board’s decision had errors of law and complained that the Board did not ask him the correct questions to substantiate his claim under the applicable grounds.    

11.By a Form CALL-1 dated 20 December 2019[5], the Judge refused to give leave to apply for judicial review.  The Judge considered that the delay was not insignificant and had not been explained, and the application should be refused simply on the ground of delay.  The Judge nevertheless examined the Board’s decision against the public law grounds, despite that the applicant did not put forward any substantive ground for his application.  She concluded there was no failing on the part of the Board, and there was no errors of law or procedural unfairness. The Judge therefore concluded that the intended judicial review had no reasonable prospect of success.       

12.Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal.  The 14-day period for the applicant to appeal the Judge’s order expired on 3 January 2020.

13.By a summons filed on 18 May 2020 together with a supporting affidavit, the applicant applied for an extension of time to appeal the Judge’s decision.  Deputy High Court Judge Bruno Chan heard the application on 14 August 2020, and by his decision handed down on 10 September 2020[6] refused the application. 

14.On 24 September 2020, the applicant filed the present summons to make a further application to this Court for extension of time to appeal. 

15.In deciding whether to extend time for appealing against the Judge’s decision refusing him 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 respondent if an extension of time were granted. 

16.The applicant was late by over 4 months, which is substantial.  Both before Deputy High Court Judge Bruno Chan and in the present application, the applicant explained that on his way to court to file the appeal on 6 January 2020, he inadvertently left behind, and lost, the relevant documents, including his recognizance paper, on the bus.  It took him some time to obtain copies of the lost documents, including obtaining a re-issue of his recognizance paper from the Immigration Department and a copy of the Judge’s decision from the Court.  In the meantime, the High Court Registry was closed because of the public health situation due to the COVID-19 pandemic.  The applicant could only file the appeal after the Registry re-opened in May 2020.  Although the applicant’s application for extension of time was not filed immediately after the registry re-opened, we are prepared to accept his explanation for the delay in light of the extraordinary circumstances.

17.As to the merit of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

18.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 this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

19.In the present application, the applicant gave an account of his claim in the attachments to the summons.  He asserted that it would not be safe for him and his family, comprising his wife and three children, to return to his country, and he could not relocate within the country because the government could not protect him.  Both in the attachments to the summons and the written submission, the applicant stated that the Boko Haram had carried out many terrorist attacks in his country, including bombings and killings.  He also claimed to have received information of his friends, who were involved in politics, being kidnapped and missing.  He further referred to attacks on Christian farmers by the militant herdsmen and asserted that the Christian community in Nigeria was under significant threat. 

20.In our view, what was put forward by the applicant do not amount to arguable grounds of appeal against the Judge’s decision.  Critically, he has not identified any ground that this Court can overturn the Judge’s decision.  Assessment of credibility and risks is for the Board, who is the primary decision-maker, and not for the Court.  In this case, the Board had, for reasons fully articulated in its decision, rejected the applicant’s evidence and case in its entirety.  The applicant has not shown, and the Judge had not found, any legal errors, irrationality or procedural irregularities in the Board’s finding and decision.  In the circumstances, the intended judicial review had no reasonable prospect of success.  The Judge was correct in refusing leave to apply for judicial review.

21.In the circumstances, the applicant’s intended appeal against the Judge’s refusal to give leave to appeal for judicial review has no prospect of success, and it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons filed on 24 September 2020. 

The applicant, unrepresented, acted in person.