Re Akpo Emmanuel Kwami

CACV 504/2021

[2022] HKCA 333

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 504 OF 2021

(ON APPEAL FROM HCAL 2274 OF 2018)

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Before: Hon Chow JA and Lisa Wong J in Court

Date of hearing: 15 February 2022

Date of judgment: 2 March 2022

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JUDGMENT

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.This is an appeal against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 5 November 2021 (“Judge’s Decision”), refusing the applicant leave to apply for judicial review.  The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 1 December 2017 (“Board’s 2017 Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“Claim”) by a notice of further decision dated 17 January 2017 (“Director’s 2017 Decision”).

Basis and allegations in support of NRF Claim

2.The basis of the Claim made by the applicant who claims to be a national of Nigeria is a fear of being harmed or even killed by members of the Juju (Abgara-uddoh) (“JAU”).

3.The circumstances causing such fear have been set out in paragraph 6 of the Director’s earlier notice of decision dated 30 October 2014 (“Director’s 2014 Decision”), paragraphs 6 to 13 of the Board’s earlier decision dated 28 October 2016 (“Board’s 2016 Decision”) and [1] to [3] of the Judge’s Decision embodied in the Form CALL-1 [2021] HKCFI 3334 (“Form CALL-1”).

4.Briefly:

(1)  The applicant’s father (“Father”) was a priest of the JAU as well as the JAU head in Osumeyi, the applicant’s home village.

(2)  The applicant himself has been practising Christianity since 1984.

(3)  There were 2 groups of JAU worshippers in Osumeyi. 

(4)  The rival JAU group had been eyeing Father’s position.  They murdered Father in 2004 to allow their select candidate to take over his place. 

(5)  On the other hand, the group to which Father belonged preferred the applicant.  The 2 camps eventually agreed to jointly nominate the applicant as Father’s successor.

(6)  However, the applicant would not renounce his Christian faith.  After Father’s funeral, JAU elders had stepped up the pressure on the applicant to do so.

(7)  The applicant’s refusal to convert to the JAU angered the elders who insisted that he was ordained to succeed Father since his birth and warned him that the JAU god would chop his head off.

(8)  What then happened was that some JAU worshippers burnt down the applicant’s house. 

(9)  To avoid being located by the JAU elders through “divination”, the applicant fled Osumeyi and took refute with different friends in Sabongari, Kano, Osun, Ibadan, Oyo, Lagos and Kaduna. During that period, he was located, and received verbal death threats, a few times.

(10)  He did not report to the police in the belief that it would be useless. 

(11)  He left Nigeria through Lagos in December 2004.

(12)  Since arriving in Hong Kong, the applicant had heard from hearsay sources that (1) Father’s priesthood had already been taken up in 2007; (2) his mother had also been killed by the JAU in March 2010 for not bringing the applicant to them; and (3) a friend of his had received death threats in early 2014 for not disclosing the applicant’s whereabouts to the JAU.

Overstaying in Hong Kong

5.After a brief stopover in Mainland China, the applicant first entered Hong Kong on 7 December 2004 as a visitor with permission to stay until 7 March 2005.  He returned to Mainland China on 27 February 2005 to extend his Hong Kong visa.  He then re-entered Hong Kong on 3 March 2005 with permission to stay until 12 March 2005.  He overstayed but was not arrested until 5 February 2009.

Lodgment of Claim and relevant procedural history

6.On 23 July 2009, the applicant raised the Claim, which was initially screened as a torture claim pursuant to the Convention against Torture or Cruel, Inhuman or Degrading Treatment or Punishment (“CIDTP”).

7.After considering the information provided by the applicant in his torture claim form dated 23 November 2013 and supplementary claim form dated 24 June 2014 and at the screening interviews on 12 February and 23 September 2014, at which times the applicant was represented by the Duty Lawyer Service, by the Director’s 2014 Decision, the Claim was found unsubstantiated under these 3 grounds for non-refoulement protection: torture risk[1], persecution risk[2] and “BOR 3” risk[3]. 

8.The applicant appealed to the Board.  After a rehearing on 5 May and 28 July 2015, at which the applicant testified and answered the Board’s questions through an interpreter, by the Board’s 2016 Decision, the Board dismissed the appeal on the 3 grounds considered by the Director.

9.In summary,the Board found the applicant not a credible witness or a genuine claimant.  It considered the applicant’s evidence on material aspects of the Claim to be contrary to common sense, evasive, implausible and inconsistent with the account given to the Director.  The veracity of the Claim was also undermined by the applicant’s failure to raise the same upon his arrival in Hong Kong until almost 4 years later and only after his arrest by the police.  Further, reasonable state/police protection and viable internal relocation options would be available to the applicant upon his return to Nigeria to lower or even negate the perceived risk, if any.

10.The applicant did not challenge the Board’s 2016 Decision.

Further screening of the Claim and Director’s 2017 Decision

11.Following the Director’s 2014 Decision, by a letter dated 30 December 2016, the applicant was invited to submit additional relevant facts on or before 13 January 2017 so that the Director could take them into account in considering the Claim on any other applicable ground.  Although the applicant did give a written reply on 11 January 2017, it contained no new or additional information, in the absence of which, the Director again rejected the Claim for failing to establish a “BOR 2” risk[4] by the Director’s 2017 Decision.

Appeal to Board and Board’s 2017 Decision

12.The applicant appealed against the Director’s 2017 Decision to the Board on grounds that reiterated his said letter dated 11 January 2017 to the Director.

13.By the Board’s 2017 Decision, the Board dealt with, and dismissed, the appeal on paper in the absence of additional information.

14.As required by Order 53 rule 4(1) of the Rules of the High Court (Cap 4A), the last date on which the applicant could apply for leave to issue judicial review proceedings in respect of the Board’s 2017 Decision expired on 1 March 2018.

Application for leave for judicial review and Judge’s Decision

15.As it happened, the applicant waited until 19 October 2018 to file the notice of application for leave to apply for judicial review (“Form 86”) under HCAL 2274/2018 seeking leave to apply for judicial review of the Board’s 2017 Decision.

16.First, the applicant was more than 7 months out of time.

17.Second, save for the general and unparticularised complaint in the affirmation filed in support of the Form 86 that the Board’s 2017 Decision was unfair and unreasonable, the applicant did not articulate any grounds for the proposed judicial review.

18.After an oral hearing, the Judge refused to extend time or grant leave to apply for judicial review for the reasons in [12] to [20] of the Form CALL-1:

“12. As the last day of the three-month period for him to file his Form 86 fell on 1 March 2018, the Applicant was therefore more than 7 months late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

13. In the Applicant’s case, a delay of more than 7 months must be considered as extremely inordinate, for which he explained at the hearing of his application that he never received the decision in the mail, and that it was only much later when he reported on his recognizance that he was so informed by his immigration officer but by then he was already seriously out of time with his application.

14. The record however shows that the decision was sent on the same day to his last reported address which is the same as his current address without being returned through undelivered post, and in the absence of any further details or other evidence to corroborate his bare assertions, I am not satisfied that the Applicant has provided any good reason for his serious delay.

15. As for the merits, if any, of his intended application, as noted above the Applicant did not put forth any proper ground for his intended challenge in his Form or supporting affirmation, while at the hearing of his application he just repeated his claim as before that his life will still be in danger in his home country, and that he has since married in Hong Kong and has his own family that he just does not want to leave. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

16. 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 the 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 the Director and the Board as they 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.

17. In the Applicant’s case, the Board having earlier already rejected his claim under torture risk, BOR 3 risk and persecution risk essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 15 – 34 of its decision with the benefit of hearing him in 2 hearings as to his oral evidence and his answers to questions raised of his claim, and in view of the absence of any relevant additional information from him for his BOR 2 claim, the Board was entitled and correct to find that the Applicant had also failed to establish any BOR 2 risk upon his return to Nigeria. In fact, on the factual basis of his own case, and given the scope and threshold of BOR 2 risk, the Applicant’s claim simply did not engage the BOR 2 ground at all. As such and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

18. Furthermore, 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 which if true 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.

19. 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.

20. 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 serious delay, I refuse to extend time and accordingly dismiss his leave application.”

Appeal to Court of Appeal - grounds of appeal and submission

19.By the notice of appeal filed herein on 18 November 2021, the applicant appealed against the Judge’s Decision, with grounds to be supplied on an unspecified later date. 

20.His 2-page written submission dated 14 December 2021 (sic) simply reiterated the allegations underlying the Claim.

21.The applicant appeared in person at the hearing on 15 February 2022.  He had nothing useful to add to his notice of appeal or written submission.   

Discussion

22.The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

23.The applicant did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality in the Board’s 2017 Decision. That being the case, the proposed application for judicial review was doomed to fail and leave was rightly refused.

24.An appeal against a refusal of leave to apply for judicial review is not an occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance, which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal will interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at at [14(2)] and [4(4)].

25.The applicant has not identified any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong. 

26.We cannot discern any either.

27.In particular, we are not sympathetic to the request made at the hearing before us for more time to gather sufficient evidence.  The applicant did not disclose what further evidence he could gather or explain why he could not adduce the same since July 2009 when he first lodged the Claim.

28.The applicant also mentioned that he has since re-married in Hong Kong with 2 children.  He has built a family here whereas he has no family to speak of in Pakistan with the passing of his parents.  While this fact may (or may not) allow the Director to exercise his discretion in favour of the applicant on some other bases, it is not a material consideration in the assessment of a non-refoulement claim.

29.In any event, we have anxiously scrutinised the Board’s Decision and the Judge’s Decision and are satisfied that both are in order.

Disposition

30.For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.

The applicant, unrepresented, acted in person

[1]  This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.

[2]  This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

[3]  This refers to a genuine and substantial risk of CIDTP covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.

[4] This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance.