RE KARIMOU ISSA BACHIROU

CAMP 130/2022

[2022] HKCA 773

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 130 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 1514 OF 2018)

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J U D G M E N T

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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 P Li (“the Judge”) dated 2 December 2021[1] refusing his application for leave to apply for judicial review.

2.  The applicant has filed an affidavit and lodged a written submission to support the application.

3.  Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing. Having considered the applicant’s summons and affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant is a national of Benin aged 40. He also has nationality and citizenship in Nigeria. He arrived in Hong Kong on 17 June 2014 and was given permission to remain as a visitor for two weeks. He overstayed. He surrendered to the Immigration Department on 19 June 2015 and raised a non-refoulement claim one month later. His claim is based on his fear of being harmed or killed by his uncle due to a dispute over his father’s land in Benin. His case is that his uncle had murdered his father and sister and he is the next target, being the eldest son in the family. The details of the applicant’s claim were set out in the decision of the Director at [6]. We will not repeat them.

5.  By two notices of decision dated 29 July 2016 and 28 September 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim. The first decision covered the torture risk[2], BOR 3 risk[3] and persecution risk[4] grounds, and the further notice of decision covered the BOR 2 risk[5] grounds.

6.  The applicant appealed the Director’s rejection of his claim to the Torture Claims Appeal Board (“the Board”). The Board heard the appeal on 24 April 2018, during which the applicant gave evidence and answered questions from the Board. By its decision dated 28 June 2018, the Board dismissed the appeal. In summary, the Board considered the applicant’s evidence sketchy and lacking in detail, and he knew little about his uncle. While it was not prepared to say that the applicant’s story was entirely incredible, the Board found it unsatisfactory, lacking in convincing detail with some of it seemed unlikely. The Board was not satisfied that the applicant had established any of the applicable grounds, having regard to the legal and evidential requirements. The Board further considered that state protection was available in Benin and Nigeria, while internal relocation options were available within Nigeria, where the applicant grew up and had lived for 30 years. These would reduce or negate any risks that he might face on returning to Benin or Nigeria. The Board found he was not at risk of any of the prescribed forms of harm and concluded that he failed to establish entitlement to non-refoulement protection under any of the applicable grounds.

7.  On 30 July 2018, the applicant filed a Form 86 together with an affidavit to apply for leave to apply for judicial review. The papers did not specify the decision in respect of which relief was sought. Other than stating in the affidavit that his life was in danger, the applicant did not provide any ground in support of the application.

8.  The Judge dealt with the application on the papers. By a Form CALL-1 dated 2 December 2021, the Judge dismissed the application. His reasons are encapsulated in [20] to [22] as follows:

“20. In a leave application, this court would consider whether there is any error of law or procedure. Whether the decision of the TCAB was reasonable. This court would not interfere with the finding of facts unless it is obviously wrong.

21. The adjudicator had analyzed the evidence in detail. He correctly pointed out the contradictions in the applicant’s evidence. He was justified in rejecting the factual basis of the applicant’s claim.

22. In my view, his conclusion is reasonable. There is no error of law and procedure in the TCAB decision.”

9.  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 decision within 14 days after it was made. The time for the applicant to appeal the Judge’s decision expired on 16 December 2021.

10.  By a summons filed on 5 January 2022, the applicant applied for an extension of time to appeal the Judge’s decision. The Judge dealt with the application on paper and, by his decision handed down on 24 February 2022[6] refused the application.

11.  On 27 April 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of his application for leave to apply for judicial review.

12.  In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, the court will take into account: (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.

13.  The applicant was late by nearly three weeks, which is not an insubstantial delay. He gave no explanation for the delay in his application to the Judge. In the present application, he stated in the summons and affidavit that due to COVID-19 there was delay in following up the procedure. It is unclear whether by that he meant the delay was due to the public health situation caused by COVID-19 or his personal health situation. Nevertheless, we would focus on the merits of the intended appeal, which is the more important consideration at this stage.

14.  In assessing the merits 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].

15.  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.

16.  In the summons and affirmation filed in the present application, the applicant only stated that his life is under threat by his uncle due to the land dispute, but did not provide any ground in support of his intended appeal. He has not identified any error in the Judge’s decision.

17.  In his written submission, the applicant repeated his claim, stating additionally that (i) his uncle is diabolic and is using diabolic power to threaten him, (ii) local laws or cultural laws only allow the “local chiefs and kings” to handle land disputes without going to the police or court, and (iii) he had intense mental suffering as a result of having to abandon everything in Benin and Nigeria. It was also said that internal relocation was not viable as he had no family ties in other regions apart from Benin. The applicant also complained that the Director and the Board erred in law in failing to carry out proper research on killings in Africa in that they only relied on Facebook information without obtaining information from the consular representative of Benin in Hong Kong with regard to land disputes, diabolic powers, “Jungle Justices of Africa” and the arbitrary powers given to local elders to handle land disputes.

18.  For the reasons set out below, we are of the view that the matters put forward in the written submissions do not constitute viable grounds of appeal:

(1)  The claims that (i) the uncle practises diabolic powers on the applicant, (ii) the applicant’s mental suffering is intense, and (iii) by law, land disputes in Africa are only dealt with by local chiefs or tribal kings, are new assertions. They had not been put before the Director, the Board or the Judge. It is not open to the applicant to advance new factual assertions in a judicial review application or in an appeal from refusal of leave.

(2)  Evaluation of evidence, assessment of risks and consideration of country of origin information (COI) are matters for the Director and the Board, who are the primary decision makers. The Court, acting in its supervisory jurisdiction, will not usurp their functions and determine the applicant’s non-refoulement claim afresh based on new facts and claims.

(3)  In any event, the new assertions have no detail or particulars.

(4)  The argument that he had no ties in regions other than Benin is contrary to his case before the Director and the Board that he had lived in Nigeria and his mother is living in Nigeria.

(5)  The complaint that the Director and the Board did not conduct proper research into the COI is misplaced, given that in the procedures before the Director and the Board, the applicant did not refer to diabolic power and resolution of land disputes by local chiefs and tribal kings. In any event, the Director and the Board did not rely on COI obtained from Facebook.

19.  We have separately considered the Board’s decision. We agree with the Judge that the Board had made detailed analysis of the applicant’s evidence and given clear, cogent reasons for his findings. In the application for leave to apply for judicial review, the applicant had not provided any ground to challenge the Board’s assessment and findings. We do not discern any viable ground to disturb the Board’s decision. We agree that the intended judicial review has no prospect of success and the Judge was correct in refusing to give leave to apply for judicial review.

20.  As the applicant’s intended appeal against the Judge’s refusal of the application for leave to apply for judicial review has no prospect of success, it would be futile to extend the time to appeal. Accordingly, we dismiss the applicant’s summons filed on 27 April 2022.