RE ATTAH VALENTINE IKENNA

CAMP 81/2021

[2022] HKCA 282

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 81 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1321 OF 2018)

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J U D G M E N T

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

1.  On 13 July 2020, DHCJ Bruno Chan (“the Judge”)  refused to give the applicant leave to apply for judicial review proceedings concerning his non-refoulement claim (“the JR Decision”)[1]. Under Order 53 r.3(4)  Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order. The deadline was therefore 27 July 2020.

2.  The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 18 September 2020 for extension of time to appeal (which was late by more than 7 weeks).  That summons was dismissed by the Judge on 25 February 2021. 

3.  On 12 March 2021, the applicant filed his summons in CAMP 81/2021 in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  Under Order 59 r. 14A(1)  RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.  In compliance with the directions made by the Registrar of Civil Appeals on 3 May 2021, the applicant filed his written submissions on 13 May 2021.

Background

5.  The Applicant is a national of Nigeria who arrived in Hong Kong on 22 January 2018, but when he was refused entry by the Immigration Department, he raised a non-refoulement claim on the basis that if he returned to Nigeria he would be harmed or killed by local security agents and/or the government authorities due to his sexual orientation and gender identity (“SOGI”).  The background of this case was succinctly summarized by the Judge at [1] to [6] of the JR Decision.

6.  By a Notice of Decision dated 9 March 2018, the Director of Immigration (“the Director”)  decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[2], the BOR 3 risk[3], the torture risk[4] and the persecution risk[5].

7.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”).  The applicant attended an oral hearing on 7 June 2018 and by its decision dated 22 June 2018, the Board dismissed the appeal and confirmed the Director’s decision.  For the reasons set out in [62] to [84], the Board found no credible evidence from the applicant of his alleged SOGI as homosexual and rejected the assertions and/or claims that he had been discovered by “Nigerian Security Agents”.  The Board found that most of the core incidents were fabricated.  The Board did not accept that the applicant would be at risk of harm or persecution by reason of homosexuality and determined that he had failed to establish his non-refoulement claim on all applicable grounds.

Application for leave to start judicial review

8.  On 9 July 2018, the applicant filed a Form No. 86 to apply for leave to judicially review both the Director’s and the Board’s decisions, and put forward the following grounds for his intended challenge (as duly summarized by the Judge at [11] of the JR Decision):

(1)  The Director and the Adjudicator reached the decisions wrongly in assessing the applicant’s non-refoulement claim in that they were not reasonable or fair as required by the Wednesbury test.

(2)  The Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the applicant’s case which led to an unfair outcome of rejecting the applicant’s claim.

(3)  The Director failed to take into account the argument that the applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies that the state would be rendered liable to the applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence.

(4)  The Director failed to consider or give sufficient weight to those relevant COI which support the applicant’s averments that the police in his country would not be able to protect him.

(5)  The Director referred to relevant COI which suited his pre-conceived conclusion which was a clear case of unfair attitude which is in itself enough to render his decision void;

(6)  The Director failed to consider the fact that the corruption and incompetency of the administration in his country is still a very serious problem as reported by various human rights organizations which were testament to the applicant’s assertions.

(7)  The Director failed to attain the high standards of fairness required by the Wednesbury test in the decision and as such it should be considered unreasonable in the scope of public law.

(8)  The Adjudicator failed to make sufficient enquiries before finalizing the determination.

(9)  The Adjudicator failed to give sufficient opportunity to the applicant to arrange relevant evidence for his non-refoulement claim as well as his appeal.  

The JR Decision

9.  The application was heard on 13 November 2019 and the applicant was assisted by an interpreter at the hearing. After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the Judge refused leave to apply for judicial review for reasons set out in [12] - [16] of the JR Decision:

“12. These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in the decisions, or in what way were their decisions unfair or unreasonable, or what relevancy was state acquiescence to his claim, or how did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did they fail to apply high standards of fairness in assessing his claim, or in what way did the adjudicator fail to make sufficient enquiry or to give him sufficient opportunity to provide relevant evidence for his claim or his appeal.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and even now in his leave application before me, the Applicant did not provide any further evidence or advance any further representation for his claim.  As such and in the premises I do not find any of these grounds reasonably arguable for his intended challenge.

13.  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.

14.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 20 – 77 of its decision with the benefit of hearing his oral evidence and his answers to questions raised of his claim during his appeal hearing, 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.

15.  It is clear to me from the decision that the Board did properly follow the approach laid down by the UK Supreme Court in HJ (Iran)  v Secretary of State for the Home Department [2010] UKSC 31 (07 July 2010)  in its consideration of the Applicant’s sexual orientation and whether he had a well-founded fear, and that it did conduct a thorough and careful examination of all the evidence indicating the Applicant’s behavior, his likely behavior on return to Nigeria, as well as the consequences of such behavior before arriving at its conclusion as noted above.

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.”

Application for extension of time to appeal the JR Decision

10.  As mentioned earlier, the applicant was late in filing a notice of appeal from the JR Decision.  He filed a summons in the Court of First Instance on 18 September 2020 for extension of time to appeal.  That was dismissed by the Judge on 25 February 2021.  Hence, the summons to this court. 

Discussion

11.  In considering whether to extend time for appealing, the Court will have regard to: (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of success of the intended appeal; and (4)  the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted).  As for (1), the applicant was late for more than 7 weeks between the JR Decision and the summons filed in the Court of First Instance.  His delay was substantial. 

12.  As for (2), the reasons for the delay, the applicant explained to the Judge at the hearing that he did not know about the 14-day rule for filing of appeal, he was unrepresented and therefore he had to seek assistance to prepare the necessary document for the appeal, which caused the delay.  The Judge rightly pointed out that ignorance of the rules is not a valid reason for his substantial delay. 

13.  In the present summons, the applicant provided another reason for delay.  He alleged in his supporting affirmation that he did not receive the JR Decision and sealed order within the 14-day time limit and he only got the said documents upon searching the court file.  However, the court file showed that the JR Decision and the sealed order had been sent to the applicant on 25 February 2021 at the address provided and confirmed by him at the hearing before the Judge.  As the documents were not returned in the post, it may be assumed that they reached the applicant.  In the circumstances, without any explanation for the sudden change of the reason for delay and in the absence of any corroboration of his story, we are not satisfied that the applicant has offered any good and credible reason for his delay.

14.  The most important consideration is (3)  the prospect of success of the intended appeal from the JR Decision.  The applicant’s grounds of review were duly considered by the Judge.  In his application for extension of time, he did not provide any proper grounds for his intended appeal and merely repeated his complaints against the Board’s decision which was already dealt with in the JR Decision.  The Judge found no realistic prospect of success in the intended appeal and dismissed his summons.

15.  In his summons, supporting affirmation and written submissions for extension of time before this Court, he also failed to provide any ground to reverse the JR Decision.  In his written submissions, he reiterated the background of his case and urged this Court to grant him an extension of time to appeal against the JR Decision.

16.  It is clear from the Board’s decision that the applicant’s case was rejected on the issue of credibility and that he had failed to convince the Board that he faced a real risk of harm upon his return to Nigeria that would qualify him for non-refoulement under any of the applicable ground.  It was perfectly open to the Board to make its findings and conclusions and the Court would only intervene if there are valid public law grounds to do so.  We do not see any such grounds in this case.  We are also satisfied that the Judge had reviewed the Board’s decision with vigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.

17.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 12 March 2021.