RE UMENWA UCHENNA NICHODEMUS

CAMP 37/2019

[2019] HKCA 860

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 37 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 788 OF 2017)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

Introduction

1.  By a decision dated 5 September 2018 (“the Decision”), Campbell-Moffat J (“the Judge”) refused to grant leave to the applicant to apply for judicial review.  The intended judicial review was against the decisions of the Director of Immigration (“the Director”) dated 29 August 2016 and 6 June 2017 and the decision of the Torture Claims Appeal Board (“the Board”) dated 19 September 2017. 

2.  On 30 January 2019, the Judge refused to grant an extension of time to the applicant to appeal against the Decision (“the Leave Decision”).

3.  The applicant now renews the application for an extension of time to appeal against the Decision to this Court by way of a summons dated 7 March 2019.  Pursuant to the directions of the Registrar of Civil Appeals given on 8 March 2019 and 28 March 2019, the applicant lodged his written submissions on 9 April 2019.  The Registrar further directed that it is for this Court to decide whether to determine the application on paper.  We consider it appropriate to determine this application on paper and we do so accordingly.

Background

4.  The applicant is a Nigerian national.  He came to Hong Kong as a visitor on 27 November 2010 and was permitted to stay until 11 December 2010.  He did not depart and has overstayed since 12 December 2010.  He was arrested by the police on 21 September 2015 and was transferred to the Immigration Department for investigation on 23 September 2015.  The applicant lodged his non-refoulement claim on 15 October 2015. The applicant’s claim was based on his fear that if he were to return to Nigeria, he would be harmed or even killed by (i) the police and the current ruling party, All Progressive Congress, for his affiliation with the People’s Democratic Party; (ii) the gangsters who suffered money loss for their investments in the applicant’s company; and (iii) the Muslims as he is a Christian. 

5.  By a Notice of Decision dated 29 August 2016, the Director decided against the applicant’s claim.  The Director’s decision covered the BOR 3 risk, the persecution risk, and the torture risk.  By a Notice of Further Decision dated 6 June 2017, the Director also decided against the applicant on his claim on BOR 2 risk.

6. The applicant appealed to the Board. After a hearing on 22 June 2017, the Board dismissed the appeal on 19 September 2017 (“the Board’s Decision”). The Board found that the applicant was an untruthful witness and his evidence was evasive, incoherent and fundamentally inconsistent with what he had advanced before the Director. Further, the applicant had been in Hong Kong for 5 years until he was arrested by the police which showed that he was not a genuine asylum seeker. The Board found that the applicant’s claims for non-refoulement protection were not made out on any applicable ground.

The Judge’s decision

7.  On 19 October 2017, the applicant filed his Form 86 for leave to apply for judicial review of the Director’s and the Board’s decisions but he did not provide any grounds of his intended challenge in Form 86 nor in his supporting affirmation.

8.  On 5 September 2018, the Judge gave her decision refusing to grant leave to the applicant to apply for judicial review.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the Judge gave the following reasons at [12] to [13] for her refusal to grant leave :

“Conclusion

12. I have considered the papers carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the Applicant, the Director and Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

13. In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

9.  The applicant did not lodge any appeal in respect of the Decision within the 14-day time limit for appealing (which expired on 19 September 2018).  By the summons filed on 5 October 2018, he sought an extension of time to appeal against the Decision.  His application was heard before the Judge on 30 January 2019.  By the Leave Decision, the Judge found that although the length of delay was minimal, the applicant’s case was devoid of merit and therefore it would not be in the interest of justice to grant an extension of time in all the circumstances of the case, see [9] of the Leave Decision.

The Renew Application

10.  By the summons dated 7 March 2019, the applicant renewed the matter before us.  The applicant did not advance any grounds of appeal in the summons or in his supporting affirmation.  In his written submissions filed on 9 April 2019, he set out some legal principles in relation to non-refoulement protection claim derived from case law without relating those principles to his own case.

Legal Principles

11.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap. 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  An applicant who fails to do so cannot appeal unless extension of time to appeal is granted. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

12.  Even if the court does not accept that the applicant’s explanation for the delay is reasonable, the court should still examine if he has merit in the intended appeal, see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346. 

13.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this application, the salient principles are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  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.

(2)  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 not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant 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.

(3)  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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A).  In the applicant’s written submissions, he reiterated the background of his case and his fear of being harmed or killed if refouled to his home country.

Discussion

14.  We agree with the Judge that despite the delay in this case was not substantial, the arguability of the intended appeal is an important consideration in an application for an extension of time, see Gurung Min Bahadur [2018] HKCA 226.  In the present case, the Board found the applicant to be an untruthful witness and the account he put forward was one he had learnt and not personally experienced and thus rejected his claim on the issue of credibility.   We agree with the Judge that the Director and the Board, having enquired into the case properly and appropriately, was entitled to reach its finding after due consideration of the evidence.  We can see no error of law or procedure nor a failure to adhere to a high standard of fairness throughout.   

15.  Further, as rightly pointed out by the Judge at [8] and [9] of the Leave Decision, the applicant failed to advance any grounds of review / appeal against the Board’s decision nor the Decision made by the Judge, he merely requested this court to consider his situation afresh as he discontented with the decision of the Judge in rejecting his case and dismissed his application.  We found nothing in the summons or in the written submissions that had disclosed any valid ground of appeal.

16.  For these reasons, we agree with the Judge that the applicant’s case is unmeritorious and should be rejected in all the circumstances of the case.   We do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal. 

Conclusion

17.  The summons dated 7 March 2019 is dismissed accordingly.

18.  We also order that, pursuant to Order 59, rule 2A(8) of the Rules of the High Court (Cap. 4A), no party may request this determination be reconsidered at an oral hearing inter partes.