RE NWOKEDIKE AUCHI PETER

CAMP 199/2022, [2023] HKCA 531

On Appeal From [2021] HKCFI 2588

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 199 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2580 OF 2018)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court)  :

I. Renewed application for extension of time to appeal

1.  On 16 November 2018, the applicant issued his application for leave for judicial review by Form 86.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (the ‘Board’)  dated 17 September 2018 which dismissed his appeal against the decisions of the Director of Immigration (the ‘Director’)  dated 6 July 2016 and 8 September 2017 respectively, rejecting his claim for non - - refoulement protection.

2.  In his decision of 2 September 2021 (the ‘Decision’), Deputy High Court Judge Bruno Chan refused to grant leave to the applicant for judicial review.

3.  Under Order 53, rule 3(4)  of the Rules of the High Court, Cap. 4A, the applicant had 14 days to appeal against the Decision. Being out of time, the applicant filed a summons on 22 October 2021 for extension of time to appeal.  The Judge on 26 May 2022 rejected the applicant’s application (the ‘EOT Decision’).

4.  Under Order 59, rule 14(3)  of the Rules of the High Court, the applicant may, within seven days after the Judge’s refusal, make a renewed application to this Court for extension of time to appeal.  On 17 June 2022 (late for over two weeks), the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

5.  Under Order 59, rule 14A(1)  of the Rules of the High Court, this Court may determine an interlocutory application without an oral hearing.  Having considered the applicant’s summons, affidavit and written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

II.  Background

6.  The applicant is a national of Nigeria.  He entered Hong Kong on 25 July 2011 with permission to remain as a visitor up to 4 August 2011.  He overstayed and was arrested on 13 August 2011.  He then lodged a non - - refoulement claim on the basis that, if refouled, he would be harmed or killed by certain social group of the local community over certain land dispute with his family and also by various terrorist and militant groups in Nigeria and further by the Muslim community in Gambia due to his Christian belief.

7.  The details of the applicant’s claim have been summarised by the Judge at [1] to [4] of the Decision.

III.  The Director’s Decision

8.  By a Notice of Decision dated 6 July 2016 (the ‘Director’s First Decision’), the Director refused the applicant’s claim on the grounds of Torture risk, BOR 3 risk and Persecution risk.

9.  By a Notice of Further Decision dated 8 September 2017 (the ‘Director’s Second Decision’), the Director rejected the applicant’s claim on the ground of BOR 2 risk.

IV.  The Board’s Decision

10.  After a hearing held on 6 August 2018, the Board dismissed the applicant’s appeal.

11.  The Board found there to be no concrete or cogent evidence to support the applicant’s claims.  In any event, the Board was satisfied that state protection and internal relocation were available to the applicant.  The Board therefore dismissed the applicant’s appeal.

V.  Decision of the Judge

12.  The applicant did not put forward any ground for seeking relief in the Form 86.  In his affidavit, he merely repeated his bare assertion about his fear of harm upon refoulement.

13.  The applicant did not request an oral hearing before the Judge.  The Judge decided that it was appropriate to determine the application on paper without an oral hearing.

14.  Even though the applicant did not identify any error of law, irrationality or procedural unfairness in the proceedings before the Board or its decision, the Judge considered the Board’s Decision with rigorous examination and anxious scrutiny.  The Judge was not satisfied that there was any prospect of success in the applicant’s intended application for judicial review and accordingly refused the leave application.

15.  In his decision of 26 May 2022, the Judge considered the delay of five weeks to be substantial or inordinate.  The Judge was not satisfied that the applicant had provided any good reason for the serious delay.  More importantly, the Judge found that there was no realistic prospect of success for the intended appeal.  The Judge therefore refused the applicant’s application for extension of time to appeal.

VI.  Legal principles

16.  In considering whether to extend time for appeal, the Court will have regard to:

1)  Length of the delay;

2)  Reasons for the delay;

3)  Prospect of the intended appeal; and

4)  Prejudice to the putative respondent if extension of time was granted.

VII.  Analysis

1)  Length of delay and reasons for the delay

17.  The applicant was five weeks late when he filed his application for extension of time to appeal before the Judge.  His renewed application to this Court was again late by over two weeks.  The applicant did not give any explanation for the delay which is serious.  This is wholly unsatisfactory.  Nevertheless, we shall focus on the merits of the intended appeal.

2)  Prospect of the intended appeal

18.  In the summons for the renewed application, the applicant claimed that the Judge’s finding that the intended appeal has no prospect of success in the EOT Decision was ‘unfair and has error in procedural process’ without any elaboration or specifics.  He also claimed that he was in a better position to explain the situation in his home country as opposed to people who had not lived there.

19.  In his affidavit, the applicant merely repeated his claims that his life would be in danger and that the country of origin information (‘COI’)  used in deciding his case was misleading.  He did not provide any particulars, elaborations or corroborating evidence.

20.  In his written submissions, he repeated his account of events which has been set out in detail by the Board.  He also claimed that COI from the United Kingdom (‘UK’)  is unreliable because the UK Government is supporting the ruling party from Northern Nigeria.  He did not provide any cogent evidence to support his allegations.  But we note that 1) the applicant’s own lawyer submitted COI, including COI from the UK Home Office, to the Board for the Board’s consideration and 2) the Board had considered a wide range of objective COI from other institutions such as the United States Department of States, news agency from Nigeria, Nigeria Police Watch, All Africa, etc.

21.  On the prospect of an intended appeal, the Court of Appeal would focus on the decision of the judge and would only consider reversing that decision if an applicant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong.  An appeal 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 not raised before the judge.  General and bare assertions without any specific particulars are not proper grounds of appeal.

22.  Furthermore, the Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant leave for judicial review.

23.  In our view, the applicant has not identified any proper grounds of appeal or errors committed by the Judge.  The intended appeal is completely devoid of merits.

VIII.  Disposition

24.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons lodged on 17 June 2022.