Re Ozoude Kenneth Ginikachukwu

CAMP 213/2020

[2021] HKCA 1142

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 213 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 310 OF 2018)

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Before:  Hon Au and Chow JJA in Court

Date of Judgment:  10 August 2021

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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):

Introduction

1.On 13 May 2020, by way of a decision (“the Deputy Judge’s Decision”)  set out in Form CALL-1 ([2020] HKCFI 280), Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  refused to grant leave to the applicant to apply for judicial review against the decision of Torture Claims Appeal Board / adjudicator of the Non-refoulement Claims Petition Office (“the Board”)  dated 16 November 2017 (“the Board’s Decision”)  and the decisions of the Director of Immigration (“the Director”)  dated 15 July 2016 (“the Director’s First Decision”)  and 18 July 2017 (“the Director’s Second Decision”)  respectively.

2.The Director’s First Decision and the Director’s Second Decision will be referred to collectively as the “Director’s Decisions”.

3.The 14-day time period for the applicant to appeal the Deputy Judge’s Decision provided under Order 53, rule 3(4)  of the Rules of the High Court (Cap 4A)  (“the RHC”)  expired on 27 May 2020.  On 16 June 2020, the applicant sought extension of time to appeal the Deputy Judge’s Decision.  He was therefore around three weeks out of time.

4.On 10 November 2020, the Deputy Judge refused to grant extension of time to the applicant to appeal his Decision (“the Extension of Time Decision”).

5.By a summons dated 18 November 2020 (“the CA Summons”), the applicant renewed his application to appeal out of time before this Court. Directions were given by the Registrar of Civil Appeals to the applicant on 28 December 2020 concerning the conduct of the application.  Under Order 59, rule 14A(1)  of the RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  Paragraph 5 of those directions also stipulated that upon consideration of the documents lodged, the Court will decide whether to determine the application on the paper. After considering the documents filed, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.The applicant is a national of Nigeria.  He came to Hong Kong as a visitor but overstayed from 19 December 2009.  He was arrested on 29 April 2012 and lodged a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 2 May 2012.  His torture claim and the subsequent petition were rejected.  After the implementation of the unified screening mechanism, his claim was again considered on other applicable grounds.

7.The applicant’s claim was based on the fear that, if refouled, he would be harmed or killed by a private money lender Alhaji and also a terrorist group named Boko Haram.  The detailed factual background was summarized at paragraph 6 of the Director’s First Decision. In short, the applicant borrowed money from Alhaji who was an influential businessman and was connected to Boko Haram.  In 2009, the applicant came to Hong Kong to purchase goods for his business.  However, after he had shipped the goods, his business partner stole the proceeds and absconded.  The applicant was left with nothing and unable to repay the loan.  As a result, Alhaji started to threaten him and his family.  Out of fear, he remained in Hong Kong for protection.

The Director’s Decisions and the Board’s Decision

8.By way of the Director’s First Decision, the Director assessed the applicant’s non-refoulement claim on the BOR 3 risk[1] and persecution risk[2] whilst the Director’s Second Decision covered the assessment of the BOR 2 risk[3]. The Director did not accept that he had established a genuine claim and dismissed it on all applicable grounds.

9.The applicant lodged an appeal to the Board against the Director’s Decisions.  An oral hearing was held on 4 October 2017, during which the applicant answered the Board’s questions with the assistance of an interpreter.

10.After hearing the applicant, and considering the applicant’s evidence in the non-refoulement claim form, the Board accepted the applicant’s evidence that he had indeed borrowed money but was unable to repay them to Alhaji.  However, it concluded that the applicant did not suffer any harassment or threats as a result of the inability to pay, that the applicant did not come to Hong Kong for protection and that the dispute was only private in nature (paragraphs 18 - 40 of the Board’s Decision).  In any event, the Board also considered that internal relocation was available to the applicant (paragraphs 46 - 50 of the Board’s Decision).  Thus, the Board dismissed his appeal.

The Deputy Judge’s Decision

11.On 27 February 2018, by way of a Form 86, the applicant sought leave to judicially review the Director’s Second Decision.  However, he did not request an oral hearing nor did he advance any grounds of review.  After considering the documents, the Deputy Judge refused to grant leave.  He set out his reasons at paragraphs 10 - 17 of the Deputy Judge’s Decision:

“10. On 27 February 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form, and in his supporting affidavit of the same date he merely attached copies of those decisions and other documents from his hearing bundle used in his appeal before the Board.

11. The Applicant was however also late with his application, as Order 53, rule 4(1)  of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review 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.

12. As the last day of the three-month period for the Applicant to file his Form 86 fell on 16 February 2018, he was therefore late by 11 days with his application, for which he did not provide any explanation in his said affidavit, nor did he request for any oral hearing for his application. As such I do not accept that he has provided any reason for his delay, although 11 days cannot be considered as significant given the fact that he was by then no longer legally represented by DLS.

13. As for the merits of his intended application, as already noted the Applicant has not put forward any grounds for his intended challenge, nor has he identified any error of law in the decisions of the Director or the Board or any procedural unfairness in the process of his claim before them, and in the absence of which I do not find any reasonably arguable basis to challenge the finding of the Board.

14. 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 an 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 them who 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.

15. The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nigeria, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

16. 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.

17. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his delay, I refuse to extend time and accordingly dismiss his leave application.”

Application for extension of time

12.On 16 June 2020, the applicant took out a summons to seek extension of time to appeal the Deputy Judge’s Decision.  In his supporting affirmation, he explained the delay in filing the Form 86 that he did not receive the Deputy Judge’s Decision from the Court, and alleged that he only went to the Court to obtain it after being informed by the Immigration Department.  The Deputy Judge heard the applicant on 30 September 2020.  After the hearing, the Deputy Judge refused to grant extension of time to the applicant as he did not accept the applicant’s explanation for the delay nor did he find that there was reasonable prospect of success in the applicant’s intended appeal.

Renewed application for extension of time to this Court

13.On 18 November 2020, the applicant renewed his application for extension of time to appeal the Deputy Judge’s Decision before this Court.  In the CA Summons, the applicant repeated his explanation that he did not receive the Deputy Judge’s Decision on time.  In his written submissions, he quoted passages from ST v Director of Immigration[4] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on Wednesbury unreasonableness.  He further submitted that “high standards of fairness” applied to the determination of a non-refoulement claim and that the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility.  Lastly, he referred to section 37ZT of the Immigration Ordinance (Cap 115)  which is about the late filing of notice of appeal to the Board.  However, he did not explain and elaborate on how the aforesaid cases and statutory provisions were relevant to or would assist his case.

Legal principles

14.In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of the intended appeal; and (d)  the prejudice to the respondent if an extension of time were granted.

15.Even if the court accepts that the applicant’s explanation for delay is reasonable, an applicant still has to show that there is a reasonable prospect of success before extension of time is considered.  When the delay is inexcusable, the Court will adopt a higher threshold by examining if there is a real prospect of success: Sumarsih v Director of Immigration [2020] HKCA 565; Re Ansar Muhammad [2018] HKCA 227; Re Muhammad Shehbaz [2020] HKCA 256.

16.In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this application, the principles can be summarised as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and 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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited.  In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirement in Ladd v Marshall [1954] 1 WLR 1489.  In respect of new arguments, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

(4)  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 decision of the judge, 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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1)  of the RHC.

Discussion

17.A delay of around three weeks is not insignificant especially in the context of a statutory time limit of 14 days.  As rightly pointed out by the Deputy Judge, the Deputy Judge’s Decision was sent to the applicant’s reported address unreturned.  The applicant’s explanation was simply a bare assertion. We do not accept the applicant’s explanation for the delay.  We now turn to consider the merits of the intended appeal.

18.As mentioned earlier, the applicant did not advance any grounds of review before the Deputy Judge.  The arguments in his present written submissions are therefore new.  As this Court has repeatedly said, in an appeal of this nature, new arguments directed against the Board which have not been canvassed at the Court of First Instance would not generally be entertained: see Re Daljit Singh [2018] HKCA 328; Re Qadir Sher [2018] HKCA 160; United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [40] and [41].  There are simply no viable grounds of appeal against the decision of the Deputy Judge.  On this basis alone, we will dismiss the appeal.

19.In any event, we have reviewed both the Board’s Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions.  We agree with the Deputy Judge that there is no ground warranting any interference of the Board’s Decision by the court by way of judicial review.

20.The applicant has failed to advance any viable grounds of appeal in support of this application.  It would be futile to extend time.  Accordingly, we dismiss the CA Summons.

The applicant acting in person