RE OSUJI ONYEKACHI LOUIS

CAMP 206/2023, [2024] HKCA 832

On Appeal From [2023] HKCFI 835

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 206 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 792 OF 2019)

________________________

________________________

________________________

DECISION

________________________

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

1)  Renewed application for extension of time to appeal

1.  On 21 March 2019, the applicant issued his application for leave to apply for judicial review by Form 86 in HCAL 792/2019.  The applicant’s intended judicial review was against the second decision of the Torture Claims Appeal Board (‘the Board’)  dated 1 February 2019 which dismissed his appeal against the further decision of the Director of Immigration (‘the Director’)  dated 23 January 2017 rejecting his non-refoulement claim on Hong Kong Bill of Rights (‘BOR’)  Article 2 (right to life)  risk.  Deputy High Court Judge KW Lung refused to grant leave on 18 April 2023.

2.  Under Order 53, rule 3(4)  of the Rules of the High Court, the applicant had 14 days to appeal against the decision of the Judge (i.e. by 2 May 2023).  Being out of time, the applicant took out an application on 4 May 2023 before the Court requesting an extension of time to appeal.  Deputy High Court Judge KW Lung on 22 May 2023 rejected the applicant’s application for extension of time to appeal.

3.  On 1 June 2023, the applicant filed the present summons to make a further application to this Court for extension of time to appeal. 

4.  Under Order 59, rule 14A(1)  of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application without an oral hearing.  Having considered the applicant’s summons, affirmation and written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2)  Factual background

5.  Briefly stated, the applicant is a Nigeria national.  He entered Hong Kong as a visitor legally but he overstayed.  He raised his torture claim on 28 July 2009, and his claim was rejected by the Director on 2 December 2014.  He made an appeal against his torture claim to the Board (‘the first appeal’), the Board also rejected his claim on 4 August 2015 (‘Board’s first decision’).

6.  The Director on 5 January 2017 informed the applicant by letter asking the applicant to provide further information in relation to his BOR 2 risk to life claim, but the applicant did not provide any further information, and the Director ruled against the applicant (‘Director’s further decision’).  The applicant then took out an appeal against the Director’s further decision out of time to the Board (‘the second appeal’).  Having considered the applicant’s reason for the delay, and also the merits, the Board ruled against the applicant (‘Board’s second decision)[1].

7.  The basis of the applicant’s non-refoulement claim is that he[2] alleged that he would be harmed or killed by :

(1)  Agha or his agent because Agha was afraid that his girl friend Tina would go back to the applicant; and

(2)  Agha because it was disrespectful to Agha for the applicant to ask Tina for repayment of what the applicant paid for Tina during her university studies.

3)  The Director’s Decisions

8.  The Director decided against the applicant’s torture claim on 2 December 2014.  The Decision covered Hong Kong Bill of Rights (‘BOR’)  Article 3 (torture/inhuman treatment), as well as other statutory and convention rights against torture and persecution[3] (‘the Director’s Decision’).

9.  The Director decided against the applicant’s right to life claim on 23 January 2017 (‘the Director’s Further Decision’).  The Director’s Further Decision covered Article 2 (right to life)  of the Bill of Rights (‘BOR 2’).

4)  The Board’s Decisions

10.  No oral hearing was conducted by the Board in the first appeal [4].  The Board dismissed the applicant’s appeal and the Director’s Decision of 2 December 2014 was confirmed.  The Board accepts the factual basis of the applicant’s claim, however, it cannot see the severity of what the applicant suffered could be sufficient to amount to torture[5].  The Board held that Agha got what he wanted, and what happened between the applicant, Agha and Tina happened six or more years ago.  Everyone’s lives have moved on and it was impossible to see what interest Agha might still have for the applicant.  There was also nothing in the evidence showing that Agha was still looking for the applicant[6].  The element of state involvement was also lacking[7].

11.  The Board dismissed the applicant’s second appeal against the Director’s further decision of 23 January 2017 on account of risk of arbitrary deprivation of life contrary to Article 2 of the Hong Kong Bill of Rights[8] (‘BOR 2 risk’).  The Board held that the applicant provided no good reason for his delay in making the appeal.  He had provided no new facts or materials on the merits of his case.  The Board repeated what was held in its first decision and held that the applicant had not made out the risks claimed.  Internal relocation was also possible[9].

5)  Decisions of the Judge

12.  In his decision dated 18 April 2023, the Judge noted that the Board rejected the reasons for the applicant’s delay of lodging an appeal to the Board.  The Board also considered the merits of the applicant’s case.  The applicant’s claim for BOR 2 cannot be sustained if he failed in his claim for BOR 3.  The applicant’s general assertions cannot be sustained when he failed to condescend to particulars.  There is no error of law or procedural unfairness[10].

13.  In his decision dated 22 May 2023, the Judge held that the applicant’s explanation for his delay was not acceptable.  The Form CALL-1 was sent on the same day to the applicant’s last known address without being returned.  The Judge held that the applicant did not put forth any valid grounds of appeal.  There was no prospect of success in the intended appeal. The application for extension of time for appeal was refused.

6)  Legal principles

14.  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.

7)  Analysis

(1)  Length of delay and reasons for the delay

15.  Under Order 53, rule 3(4)  of the Rules of High Court, the applicant had 14 days to appeal the decision of the Judge. 

16.  The Form CALL-1 decision was handed down on 18 April 2023.  The deadline for the appeal was 2 May 2023.  The applicant was two days late when he filed his extension of time to appeal application on 4 May 2023.  The applicant made bare assertion in his summons and affirmation simply saying that he did not receive the decision within the 14-day period but without providing any further details in support[11].

(2)  Prospect of the intended appeal

17.  In the applicant’s summons, the applicant repeated that he did not get the High Court letter within the 14-day period, and he had to search the court file.  The applicant’s affirmation repeated the same matter.  The applicant’s written submission stated general statements of law, quotations from cases and statutes, and bald assertions of procedural unfairness. 

18.  In our judgment, the applicant does not have any prospect of success in his intended appeal.

19.  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 and refused extension of time.

20.  Since the applicant has not identified any error of law or procedural unfairness in the decisions of the Judge, the intended appeal does not have any prospect of success.

8)  Disposition

21.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons filed on 1 June 2023.