RE MGBENKA KINGSLEY ONYEKACHI

CACV 446/2020

[2021] HKCA 314

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 446 OF 2020

(ON APPEAL FROM HCAL NO. 156 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 appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 16 June 2020[1] refusing to extend the time for him to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 3 April 2017 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 27 November 2015 and 23 January 2017 rejecting his non-refoulement claim.

2.  The applicant has consented to his appeal being heard by two judges of the Court of Appeal.

3.  The applicant is a national of Nigeria aged 37. He last arrived in Hong Kong on 28 May 2011 and was given permission to remain as a visitor until 18 June 2011.  He overstayed and was arrested by the police on 9 July 2011.  On 11 July 2017, he raised a non-refoulement claim based on fear of being harmed or killed by (1) his paternal uncle who has put a curse on his family land, and (2) his former customers with whom he had a dispute.  His claim was set out in detail in the Director’s decision at [6] and summarised in the Board’s decision at [2] and [3], and by the Judge in [1] to [5] of the Form CALL-1. 

4.  In gist, the applicant claims that his uncle casted a curse on the family land to prevent him from inheriting it.  His uncle also falsely accused him of stealing money from his business and beat him with a barb wire injuring him badly.  The applicant also claims that two of his customers issued death threats to him after they had a dispute over the packaging of the goods.  To avoid further threats, his uncle arranged the applicant to come to Hong Kong to purchase goods.  When he telephoned his uncle to ask for reimbursement of the money he spent on the purchases, they had an argument and his uncle threatened to kill him on his return to Nigeria.  Fearing for his safety, he overstayed and remained in Hong Kong.  

5.  By his decision dated 27 November 2015, the Director rejected the applicant’s claim having regard to the torture risk[2], persecution risk[3] and BOR 3 risk[4] grounds. 

6.  The applicant appealed the Director’s decision to the Board.  By the time the Board heard his appeal, the Director had issued a further decision dated 23 January 2017 rejecting his claim on the BOR 2 risk[5] ground.  The Board therefore dealt with his appeal having regard to all the applicable grounds.

7.  The Board held an oral hearing on 20 February 2017 to hear the appeal.  The applicant did not attend and gave no explanation for his absence.  The Board proceeded to consider the appeal in his absence.  By its decision dated 3 April 2017, the Board dismissed the appeal.  In summary, on the basis of the materials available to it, the Board found the applicant had not suffered any harm from his uncle or customers that attained the minimum severity under any of the applicable grounds.  The Board also considered internal relocation is viable.  The Board found there was no real risk of the applicant experiencing any type of harm or ill-treatment as claimed, and concluded that he failed to make out a case for non-refoulement protection under any of the applicable grounds.   

8.  On 2 February 2018, the applicant filed a Form 86 together with an affidavit to apply for leave to judicially review the Board’s decision.  The application was outside the three-months’ period stipulated in Order 53 rule 4(1), Cap. 4A.  The applicant did not give any ground for seeking relief.  He only stated in his affidavit that (1) he would be harmed or killed if he returned to his country; (2) his family was in disarray; (3) there were family disputes; and (4) there is no protection from the authorities in his country. 

9.  The applicant did not request an oral hearing.  The Judge dealt with his application on the papers.  For reasons set out in [11] to [18] of the Form CALL-1, the Judge refused to extend the time for applying for judicial review and dismissed the application:

“11.  On 2 February 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affidavit of the same date he merely repeated his claim that his life is still in danger in his home country and that he would like the court to review his claim.

12.  By then he was however way out of time with his Form 86, 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.

13.  As the last day of the three-month period within which the Applicant was to file his Form 86 fell on 3 July 2017, he was therefore seven 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) reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

14.  In the Applicant’s case, a delay of seven months must be regarded as very substantial or excessive, for which he did not provide any explanation in his affidavit, nor did he attend the hearing of his application without any explanation. As such I am unable to find any good reason for his such serious delay.

15.  Nor, as noted above, did he put forward any arguable ground for his intended application, and in the absence of any legal error or procedural unfairness being shown by the Applicant, or any complaints or particulars from him that the decision may in any way be considered unfair or unreasonable, while the latest news and information about current situations in Nigeria were never raised before the Director or the Board and are wholly irrelevant to his claim of risk of harm from his uncle or unhappy customers. As such I am unable to find any reasonably arguable basis to challenge the finding and decision of the Board.

16.  Furthermore, on the basis of even his own case, the Board and for that matter the Director as well were entitled to find and establish in their decisions 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, the Board was right to conclude that there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

17.  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.

18.  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 his application is dismissed.”

10.  By his decision dated 27 August 2020[6], the Judge extended the time for the applicant to appeal his decision dated 16 June 2020.

11.  The applicant filed the notice of appeal on 8 September 2020.  He gave the following as his grounds of appeal:

“[The applicant] will face hardship if he is to return to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognised, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in the making groundless speculations.”

12.  The applicant had put in a written submission which cited passages from cases on the high standards of fairness, and argued that as the decision has the effect of finally disposing of the applicant’s claim with real and significant implications for his substantive right not to be subject to torture, high standard of fairness is required.

13.  We heard the appeal on 8 March 2021.  At the hearing, the applicant reiterated he is not safe in his country.  He said that people with whom he did business have given his name and details to the immigration authority, hence any time he returns to Nigeria they will know.  He also said that his uncle is a member of a secret society, and he had put a curse on the land and killed his parents.

14.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.  The following principles are relevant to this appeal:

(1)  The primary decision makers in relation to a claim for non-refoulement are the Director and the Board.  They assess the evidence and are the finders of fact, which may include findings in respect of the applicant’s credibility, the risk of harm, the availability of state protection, and the viability of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as well as relevant information regarding the country of origin.

(2)  The role of the court in a judicial review is not to provide a further avenue of appeal.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board.  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 and/or the process by which the decision was made.

(3)  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 were not raised before the judge.

(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 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.

(5)  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 requirements in Ladd v Marshall [1954] 1 WLR 1489. 

(6)  In respect of new argument, the Court of Appeal 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.

15.  In light of the established legal principles set out above, we are of the view that the grounds of appeal and the arguments put forward by the applicant do not constitute viable grounds of appeal.  Firstly, in an appeal against the refusal of leave by a judge of the Court of First Instance, the focus of the Court of Appeal is the correctness of the judge’s decision.  It is therefore incumbent upon the appellant to point to errors in the reasons and decision of the judge.  In the present case, the applicant was about seven months late when he filed the Form 86, and the Judge refused to extend the time for him to bring judicial review.  None of the grounds of appeal and arguments put forward by the applicant has addressed the Judge’s decision not to extend time.  He has not identified any error in the Judge’s reasons for not extending time. 

16.  Secondly, the grounds of appeal contained in the notice of appeal and written submission were not argued before the Judge.  It is not open to the applicant to advance these new arguments which he had not raised in the court below.  In any event, evaluation of risk of harm and assessment of country of origin information are matters for the primary decision makers and not for the court.  The Board had rejected the applicant’s case and claim that he would be at risk of being harmed.  The applicant has not advanced any substantive ground to challenge the Board’s findings and decision.  His bare assertions that the Board was wrong and/or he would be in danger if he were to return to his country are not proper grounds for judicial review.     

17.  Thirdly, the written submission only puts forward general propositions of law without showing how they are related to the applicant’s appeal. 

18.  Fourthly, with regard to what the applicant said at the appeal hearing, they contain new facts that had not been put before the Director or the Board.  It is not open to the applicant to adduce new facts or evidence on appeal.  Further, since assessment of risk is for the Director and the Board who are the primary decision makers, the matters put forward by the applicant are not relevant considerations for the Court.  

19.  In any event, we have reviewed the Board’s decision and the Judge’s decision and the reasons they gave for their decisions.  We agree with the Judge that there is no basis for extending the time to apply for judicial review.  Accordingly, we dismiss the appeal.