RE MICHAEL UGOCHUKWU KINGSLEY

CAMP 210/2022

[2022] HKCA 1558

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 210 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 508 OF 2019)

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J U D G M E N T

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

1.  By a summons dated 24 June 2022, the applicant applied to this Court for leave to appeal against the order made by Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 14 June 2022 refusing the applicant’s application for extension of time to appeal ([2022] HKCFI 1441)  (“the EOT Decision”)  against the Deputy Judge’s earlier order dated 16 December 2021, refusing his application for leave to apply for judicial review ([2021] HKCFI 3789)  (“the Leave Decision”).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 1 February 2019 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”)  dated 21 March 2017 rejecting his claim for non-refoulement protection (“the Director’s Decision”).

3.  Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.  The applicant is a national of Nigeria.  He entered Hong Kong on 19 November 2008 and was permitted to remain as visitor until 3 December 2008.  He did not depart and overstayed in Hong Kong since 4 December 2008.  On 22 October 2015, he surrendered to the Immigration Department for having overstayed and were released on recognizance on the same day.  On 10 March 2016, he lodged a non-refoulement claim on the basis that if refouled, he would be killed by Ibekwe and / or his associates because of their grudge against his father, who refused to politically cooperate with them.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] and [5] of the Leave Decision.

5.  By a Notice of Decision dated 21 March 2017, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4].

6.  The applicant then appealed against the Director’s Decision to the Board.  On 3 December 2018, he attended an oral hearing before the Board.  On 1 February 2019, the Board dismissed his appeal.  The Board found that the applicant was not a credible witness and he had no extrinsic evidence to support his alleged story.  The Board found it difficult to believe anything the applicant said and that there was no real chance that if refouled he would suffer death or other harm at the hands of his enemies.  Accordingly, the Board considered that the applicant failed to substantiate his claim on all applicable grounds and dismissed his appeal.

The Leave Decision

7.  On 21 February 2019, the applicant filed a Form 86 with a supporting affidavit applying for leave to apply for judicial review against the Board’s Decision.  The applicant did not specify any ground of review in his Form 86 and in his supporting affidavit, he only stated that the scar on his left leg was the result of the chronic ulcer he suffered from his shackled ankle at the time of his kidnap in 1993 and that he still faced life threats from his enemies.  As he did not request for an oral hearing, the Deputy Judge considered and determined his application on paper.

8.  By the Leave Decision, the Deputy Judge dismissed the applicant’s application for leave to apply for judicial review. His reasons were set out in detail at [12] - [18] of the Leave Decision:

“12. 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).

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

14. 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.’

15. His affidavit in support of this application does not assist his application. The Board has taken on board his scar evidence. The adjudicator, having heard his oral evidence, is entitled to form his view as he did in this case. The applicant has raised no valid challenge to the Board’s Decision.

16. 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.

17. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

18. I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.”

The EOT Decision

9.  Under Order 53, rule 3(4)  of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order.  No notice of appeal was filed by the applicant within the 14-day period.

10.  On 14 April 2022, the applicant filed a summons (“the EOT Summons”)  together with a supporting affirmation for extension of time to appeal against the Leave Decision.  By then, he was 3.5 months late with his intended appeal.  In his summons and supporting affirmation, he contended that he did not receive the documents from the High Court.

11.  By the EOT Decision, the Deputy Judge noted that the Leave Decision was sent to the applicant’s last known address on 16 December 2021 which was returned to the Court on 10 January 2022.  An enquiry was then made to the Immigration Department for his updated address and the Leave Decision was then sent to the updated address on 14 January 2022.  The letter was then also returned to the Court on 9 February 2022.  The Deputy Judge then observed that the applicant was unable to set out any valid ground to challenge the Board’s Decision and did not point out any error in the Leave Decision.  Accordingly, as there was no realistic prospect of success in his intended appeal, the Deputy Judge refused to extend time and dismissed the applicant’s application.

The Present Application

12.  By a summons and supporting affidavit both filed on 24 June 2022, the applicant applied for leave to appeal against the EOT Decision.  In his summons, he only stated that he wanted to challenge the EOT Decision.  In his supporting affidavit, he only claimed that he was late and requested for an extension of time without giving any reasons.

13.  Pursuant to the directions made by the Registrar of Civil Appeals on 24 June 2022, the applicant lodged his written submissions on 8 July 2022.  In those submissions, he repeated the alleged factual basis and procedural history of his non-refoulement claim.  He also alleged that the Board’s Decision was not given based on the law.

Discussion

14.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

15.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (a)  the length of delay; (b)  the reasons for the delay; (c)  the prospect of success of the intended appeal; and (d)  the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

16.  We consider that the applicant’s delay of 3.5 months as very substantial and the applicant simply failed to give any good reason for his delay.  In any event, it is the duty of a litigant to give the Court an address to which correspondence or notice can come to her attention in a timely manner.  The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulders of the litigant: see Re Ahmed Zakar [2019] HKCA 566 at [19]; Said Umair v Torture Claims Appeal Board [2018] HKCA 82 at [9]; and Re Ram Ishver Dass [2019] HKCA 27 at [16].  Accordingly, the Court will only grant extension of time if his appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; and Re MA [2019] HKCA 1020 at [18].

17.  The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this Court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the Deputy Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

18.  Nowhere in the summons or supporting affidavit for the present application did the applicant identify any error in the Leave Decision with specific particulars. General and bare assertions on his fear if refouled to his home country do not constitute valid grounds of appeal.  As such, no viable ground of appeal was given by the applicant.  The intended appeal must fail on this basis alone.

19.  Further and in any event, the Board gave its decision after detailed legal analysis of the applicant’s case and the evidence and we agree with the Deputy Judge that there was no error of law or procedural unfairness in the Board’s Decision. Accordingly, the applicant’s allegation that the Board did not give its decision based on law is a non-starter.

20.  For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and the applicant’s summons dated 24 June 2022 dismissed.