Case Document

100%Judiciary

HCAL 1436/2018

[2021] HKCFI 3178

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1436 OF 2018

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RE:

OGBOZOR TOCHUKWU EUGENE

Applicant

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Before: Deputy High Court Judge K.W. Lung in Chambers

Date of Decision: 9 November 2021

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D E C I S I O N

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The application

1.The applicant is an illegal immigrant and he lodged a non-refoulement claim with the Director of Immigration (the “Director”). The Director, by his Decision, rejected his application and he appealed to the Torture Claims Appeal Board (the “Board”). Having considered his evidence, the Board, by its Decision (the “Board’s Decision”), rejected his appeal and affirmed the Director’s Decision.

2.Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

3.By Order dated 18 August 2021 (the “Court’s decision”), the Court refused to grant him leave to apply for leave to apply for judicial review of the Board’s Decision and dismissed his application for the reason that there was no realistic prospect of success in his intended application.

4.The applicant filed a summons on 7 October 2021 for appeal against the Court’s decision out of time.

5.In his affirmation in support of his application, he submitted that he did not receive the Court’s decision. The Court’s letter may get lost. He considered that the Court was in error for not inviting him to a hearing. The Court was also in error to dismiss his claim under BOR 3 risk. The Board was also wrong for not believing his evidence on his personal risk under BOR 3 risk. He submits that the following situations of political instability, social unrest, extra judicial killings, unknown gun-men, ISWAP, Boko Haram, Fulani Herdsmen, banditry, kidnapping, insurgency and militancy will give merits to his claim.

Discussion

6.Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reasons, I decide to determine this application without an oral hearing.

7.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.

8.In Re Adumekwe Rowland Ejike [2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”

9.I shall therefore first consider the merits of his intended appeal.

10.The Board considered the applicant’s evidence the Board rejected his appeal and affirmed the Director’s Decision for the reasons below.

(1) The Board, having analyzed his evidence, found his evidence implausible [57], improbable [58], embellished and incredible [59] and speculative [60].

(2) For the reasons above, the Board did not accept that the applicant was extorted by the Niger Delta Group or Niger Delta Militants after the death of his father and was targeted by this group or people associated with them over a period of seven years while in Nigeria. The Board found that the applicant was not a witness of truth and his claim regarding his experiences in Nigeria was not credible. [63]

(3) The Board therefore did not accept the fundamental basis of the applicant’s claim that he faced any form of harm upon return to his home country. [64]

11.His grounds for this application are not valid. The allegations are bare assertions without any evidence in support of them. Since the Board had given no credit to his evidence, he does not have the factual basis in support of his claim, including the BOR 3 risk.

12.The applicant has not raised any valid ground to say either that the Board was in error or that the Court was in error. There is no realistic prospect of success in his intended appeal against the Court’s decision.

13.In the circumstances, I refuse to extend time for his appeal against the Court’s decision. Accordingly, I dismiss his application.