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CAMP 369/2021
[2022] HKCA 289
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 369 OF 2021
(ON AN INTENDED APPEAL FROM HCAL 1294/2018)
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| RE: |
IBE CHUKWUMA LAWRENCE |
Applicant |
________________________
Before: Hon Barma JA and G Lam JA in Court
Date of Judgment: 25 February 2022
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J U D G M E N T
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Hon Barma JA (giving the Judgment of the Court):
1. This is an application for extension of time to appeal against the decision of DHCJ KW Lung (“the Judge”) dated 22 March 2021 refusing leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 28 June 2018, by which the Board rejected his claim for non-refoulement protection. On 7 June 2021, the Judge refused to extend time for the applicant to appeal.
Background
2. The applicant is a Nigerian national. He came to Hong Kong on 20 January 2008 as a visitor and overstayed. He was arrested by the police on 17 September 2014 and lodged a non-refoulement claim with the Immigration Department on 19 September 2014.
3. In gist, the applicant’s claim was based on a fear of death or serious harm threatened by his uncle Amaobi and his friend Emeka. According to the applicant, his uncle Amaobi who is well connected with the People’s Democratic Party and the police in the locality had a dispute with his family over a piece of land and had killed his father and brother. The applicant’s friend Emeka gave him US$10,000 to come to Hong Kong to buy some phone accessories, which he failed to do and Emeka demanded repayment and threatened to kill him for his failure to repay.
4. By a Notice of Decision dated 24 November 2017, the Director decided against the applicant’s claim. This decision covered the torture risk[1], the persecution risk[2], the “BOR 2” risk[3] and the “BOR 3” risk[4].
5. The applicant appealed to the Board. After an oral hearing on 18 April 2018, the Board dismissed the appeal on 28 June 2018, as it disbelieved the applicant and rejected his case.
6. The Board’s decision covered all four grounds for non-refoulement protection.
The Judge’s decision on leave to apply for judicial review
7. The applicant filed a Form 86 on 5 July 2018 for leave to apply for judicial review against the Director, with a supporting affidavit, in which he the annexed the Board’s decision dated 28 June 2018 without any explanation as to the grounds of the proposed judicial review.
8. The Judge dealt with the application on paper and directed the amendment of the Form 86 to the effect that the Board was the putative respondent and the Director was the interested party pursuant to O.20, r.8 and O.53, r.3(6), treating it as an application for leave for judicial review of the Board’s decision. The Judge gave the following reasons in his decision dated 22 March 2021 in refusing the application (at [8] to [17] of the CALL-1 Form[5]):
“The Board’s Decision
8. The applicant appealed to the Board against the Director’s Decision. He attended the hearing on 18 April 2018.
9. By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons as set out below.
(1) The Board had cross-examined the applicant extensively in the hearing. See paragraphs 58-93.
(2) Having considered the applicant’s evidence, the Board concluded that he was not a witness of truth and he had not told the truth in relation to critical aspects of his claims. [94]
(3) The Board also concluded that the applicant had fabricated his claims of a property dispute with his uncle, and that he and his father and brother were threatened and beaten by his uncle and his uncle’s men, and that his father and brother were both murdered and he was threatened and beaten as claimed. [95] In a nutshell, the Board rejected his evidence on the facts in support of his claim. See §§98&99.
(4) For the above reasons, the Board rejected his claim on Torture risk [111], BOR 3 risk [118], BOR 2 risk [122] and Persecution risk [134].
Application for leave to apply for judicial review
10. The applicant filed Form 86 on 5 July 2018 for leave to apply for judicial review of the Board’s Decision.
11. In his affidavit in support of his application, he only attached a copy of the Board’s Decision without saying anything.
DISCUSSION
12. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
13. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
‘13 … 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.’
14. He has not set out any ground in support of his application in his affidavit dated 5 July 2018.
15. 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.
16. There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.
CONCLUSION
17. I therefore refuse to grant leave for the applicant to apply for his intended judicial review. Accordingly, I dismiss his application.”
9. According to the court’s record, a copy of the CALL-1 form and a sealed copy of the Judge’s order sent to the applicant by ordinary post on 22 March 2021.
The application for extension of time to appeal before the Judge
10. Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.
11. The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 22 March 2021. He only took out a summons to extend time to appeal on 21 April 2021. In his supporting affirmation, he stated that he needed a time extension since he did not receive the Judge’s decision in time.
12. The Judge dismissed his application for extension of time on 7 June 2021 and gave the following reasons at [5] to [12] of his decision:
“5. Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, I decide to determine this application without an oral hearing.
6. In Re Adumekwe Rowland Ejike [2019] HKCA 702, the Court of Appeal held:
‘19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].’
7. The Court had in its decision, set out the reasons why it refused to grant leave to the applicant to apply for judicial review of the Board’s Decision.
8. The Board simply rejected his evidence on the facts of his case. In other words, the applicant has no factual basis in support of his claim.
9. The Court had considered the grounds for his application for leave to apply for judicial review and dealt with them in its decision.
10. The Court had considered the Board’s Decision and found that it was without fault.
11. He has no valid reason in support of his application.
12. In the circumstances, I find that the applicant is unable to show that he has any reasonable prospect of success in his intended appeal against the Court’s decision. I refuse to extend time for his appeal. Accordingly, I dismiss his application.”
The present application for extension of time to appeal
13. By a summons filed on 3 September 2021, the applicant renewed his application for an extension of time to appeal before this court. In the summons and the supporting affidavit, the applicant stated that he would like to extend time to appeal against the Judge’s decision refusing to grant leave for judicial review but did not provide any explanation for the delay or any intended ground of appeal.
14. In the applicant’s written submissions dated 13 September 2021, he stated that he did not receive the letter containing the Judge’s decision refusing leave for judicial review in time and therefore required an extension of time to appeal. He did not set out any intended ground of appeal.
Discussion
15. Having considered the papers and the applicant’s written submissions, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing. We have, therefore, determined the applicant’s application on the basis of the documents filed.
16. The initial delay of the applicant in the present case was a relatively short one and we accept that it is possible that there was a delay in the applicant’s receipt of the Judge’s decision dated 22 March 2021 which led to the delay in taking out an appeal. However, the applicant has not provided any explanation why it took around 3 months after the Judge’s decision dated 7 June 2021 before he took out the present application before this court.
17. We have nonetheless proceeded to consider the merits of the intended appeal.
18. The applicant did not in the Form 86 or the accompanying affidavit point to any error of law, procedural unfairness or irrationality in the Board’s Decision. The applicant has not condescended to any particulars as to on what basis the Board’s Decision was said to be wrong, unfair or Wednesbury unreasonable. As rightly observed by the Judge, 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. That being the case, the application for leave for judicial review of the Board’s Decision was hopeless and rightly dismissed by the Judge.
19. The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong. Nor can we discern any such matters.
20. In the circumstances, we do not see any prospect of success in the intended appeal, and this court will not grant an extension of time for a hopeless appeal. The summons filed on 3 September 2021 is accordingly dismissed.
| (Aarif Barma) |
(Godfrey Lam) |
| Justice of Appeal |
Justice of Appeal |
The applicant acting in person
[1] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[2] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[3] This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[4] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.
[5] [2021] HKCFI 690
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