RE LOUA CECE

CAMP 13/2023, [2023] HKCA 1187

On Appeal From [2022] HKCFI 3200

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 13 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 2371 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 1 November 2022, DHCJ K.W. Lung (“the Judge”) refused to grant leave to the applicant for leave to apply for judicial review concerning his non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) of the Rules of the High Court (Cap. 4A) (“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.

2.  The applicant did not lodge an appeal in time. He filed a summons in the Court of First Instance on 24 November 2022 for extension of time to appeal against the JR Decision. The summons was dismissed by the Judge on 3 January 2023.

3.  On 11 January 2023, the applicant filed a summons in CAMP 13/2023 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the Judge’s decision dated 3 January 2023. This summons is to be treated as a renewed application for leave to appeal out of time against the JR decision, see: Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 At [3] to [8].

4.  In compliance with the directions made by the Registrar of Civil Appeals on 11 January 2023, the applicant lodged his written submissions on 18 January 2023.

5.  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.

Background

6.  The applicant was born in Nigeria in the late 1970’s or early 1980’s and is a national of that nation. He was issued with a passport of Nigeria in the name of OBINELO, Vincent Chekwube. He travelled to Guinea in 2008 and obtained a passport of that nation in the name of LOUA Cece. He entered Hong Kong as a visitor on 21 April 2009 and was arrested for, and subsequently convicted of, a drug-related offence and sentenced to prison for 14 years and 8 months. On 19 June 2017, while in prison, he lodged a non-refoulement claim alleging that if refouled, he would be captured by secret agents and tortured, or be harmed by the authorities in Nigeria as he had been involved with a group named “Movement for the Actualization of the Sovereign State of Biafra” (“MASSOB”) who the authorities held responsible for the killing of Muslims. He further stated that he could not be refouled to Guinea as he would be sent back to Nigeria from there, and face the same risk of harm. The factual background of this case was succinctly summarised by the Judge at [5] – [7] of the JR Decision ([2022] HKCFI 3200).

7.  By a Notice of Decision dated 21 May 2018, the Director of Immigration (“the Director”) decided against the applicant’s claims. The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

8.  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 19 October 2018 and by its decision dated 2 November 2018, the Board dismissed the applicant’s the appeal. For the reasons set out at [64] – [92], the Board did not find him a truthful and credible witness. The Board was satisfied that the applicant is a Nigerian national but was not satisfied with his claim that he possessed the Guinean passport and Guinean nationality through his mother, as his explanation for the difference in names and dates of birth and his ignorance of the alleged place of his birth in Guinea as stated in the passport were not credible. Further, the Board was not satisfied that due to his membership of MASSOB, the applicant was detained by agents of the Nigerian government from September 2006 to April 2007 or that during the detention he was subjected to ill-treatment amounting to torture. Even on the applicant’s own evidence, including the fact that he was able to present himself to the government authority to collect his passport without being arrested, the Board found that he was not actively pursued by the Nigerian government. Regarding the applicant’s claim that he came to Hong Kong to seek asylum protection, it was inconsistent with the fact that he had left Hong Kong after three days and travelled to Bangkok from where he returned to Hong Kong with the drugs, and also that after his conviction for drug trafficking, he applied under the Transfer of Sentenced Prisoners Ordinance to return to Nigeria to serve his sentence, which was refused. Although the Board accepted that it is possible that if the applicant returns to Nigeria, he could be tried again and sentenced under Nigerian Law, double jeopardy in that context is not a ground for non-refoulement protection claim (Ubamaka Edward Wilson v Secretary for Security [2012] 15 HKCFAR 743). In all, the Board did not find the applicant’s claim was substantiated. For the aforesaid reasons, the applicant's non-refoulement protection claim was rejected on all applicable grounds.

Application for leave to start judicial review

9.  On 26 October 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision. He did not provide any grounds for relief in his Form 86 and the supporting affirmation save for saying that he was dissatisfied with the Board’s decision.

The JR Decision

10.  The applicant did not request an oral hearing and the court disposed of his application on paper. After due consideration of the decision of the Board, the Judge refused to grant leave to apply for judicial review with reasons set out in [16] - [21] of the JR Decision:

“16. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

18. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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.”

19. The Board had assessed his case and did not accept his evidence on the facts of his case. The ground in paragraph 15 is only his opinion and not a valid reason to challenge the Board’s Decision.

20. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

21. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

Application for extension of time to appeal the JR Decision

11.  As mentioned earlier, the applicant failed to file a notice of appeal within time. He filed a summons in the Court of First Instance on 24 November 2022 for an extension of time to appeal. That was dismissed by the Judge on 3 January 2023. Hence, the Summons to this court.

Discussion

12.  In considering whether to extend time for appeal, 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).

13.  As for (1), the applicant was late by 9 days between the deadline for filing his appeal against the JR Decision and the summons filed in the Court of First Instance. His delay was not significant.

14.  As for (2), the reasons for the delay, in his affirmation filed with this Court, he said that he did not receive the JR Decision. The court file showed that the JR Decision was sent to the applicant’s last reported address (which is the same as the one provided in his summons dated 24 November 2022) on the same day it was handed down without being returned as undeliverable mail. Be that as it may, the delay is not significant.

15.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision. The applicant had failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the JR Decision either in his summons or in his affirmation.

16.  In his written submissions, he claimed the decision disposed of his torture claim and made him liable to be removed, which entailed significant implications for his substantial right not to be subjected to torture and his right to non-refoulement protection. He quoted cases contending that high standards of fairness are required in the determination of a non-refoulement claim and the Board had acted in a procedurally unfair manner without properly assessing his credibility. Lastly, he referred to section 37ZT of the Immigration Ordinance (Cap. 115) which is concerned with the late filing of notice of appeal to the Board. However, he did not explain or elaborate on how the aforesaid cases and legal provisions were relevant to his case. The applicant further attached an opinion from the Afripost Newspaperand an article apparently from the Guardian on persecution of indigenous peoples of Biafra in Nigeria. Both are dated August 2022, prior to the Judge dealing with the application for judicial review, and it has not been explained why they had not been submitted to the Judge.

17.  In any event, it is clear from the Board’s decision that the Board did not accept as a fact that the applicant had been detained and ill-treated by secret agents of the Nigerian authorities. Further, the applicant’s application to return to Nigeria to serve his sentence cast serious doubt if he is a genuine asylum seeker. These were facts which the Board was entitled to find, and the court would only intervene when there are valid public law grounds. We see none in this case.

18.  We are also satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and had rightly dismissed the leave application. We find nothing amiss in the JR Decision.

19.  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 11 January 2023.