RE NJOKU DESMOND OZOEMENA

CAMP 236/2019

[2021] HKCA 634

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 236 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 298/2018)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan of 17 June 2019 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 15 January 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 26 April 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Nigeria.  He entered Hong Kong on 5 July 2012 as a visitor and was permitted to remain until 19 July 2012.  He overstayed and was arrested by the police on 5 May 2015.  He lodged a non-refoulement claim on 5 July 2015. 

3.  The applicant’s claim was based on threats from the Muslim community in Nigeria who persecuted him because of his Christian faith.  He also said he was the regional co-ordinator of the People’s Democratic Party which was in opposition to the All Progressives Congress (“APC”), an Islamic political party which he alleged to have come to power after the presidential election in 2012.  The details of the applicant’s claim have been summarised by the Board at [10] to [27] of the Board’s Decision and by the judge at [1] to [5] of the CALL-1 Form.

4.  By a Notice of Decision dated 26 April 2017 (“the Director’s Decision”), the director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk[1], the BOR 3 risk[2], the persecution risk[3], and the torture risk[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 22 November 2017 from which the applicant was absent, the Board dismissed the appeal on 15 January 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.  The applicant failed to attend the hearing before the Board notwithstanding notice duly given to him.

6.  At [43] to [60] of the Board’s Decision, the Board found that there was insufficient evidence to suggest that the applicant is at risk of any of the proscribed harm upon his return.  The assertions of the applicant regarding the APC were manifestly wrong because according to APC’s website, it was only formed in 2013 and only won the presidential election in 2015.  By then, the applicant had left Nigeria.  The Board also found the lapse of time between the applicant’s arrival in Hong Kong and his lodging of non-refoulement claim as casting doubt on his credibility after rejecting his explanation for such delay as untrue.  The Board was also satisfied at [62] that internal relocation would be viable.

The judge’s decision

7.  The applicant filed a Form 86 on 26 February 2018 which contained no ground for seeking relief.

8.  In his affirmation in support of the leave application dated 26 February 2018, the applicant deposed that it was unfair for the Board to render its decision without hearing from the applicant.  The applicant claimed that the Immigration Department failed to inform him of the hearing.

9.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the director and the board, the judge refused to give leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [11] to [15] of the CALL-1 Form:

“ 11. In his affidavit the applicant did not provide any particulars or evidence that he did not receive either the notice of the scheduled hearing for his appeal or the letter from the Board requesting his explanation for his failure to attend the hearing, and if he happened to have changed his address at the material time, he did not provide any such evidence either, as it is the duty of an applicant or claimant to give the authority an address to which correspondence or notice can come to his attention in a timely manner, and the consequence of any delay or default caused by the ineffectiveness of such an address fell on the shoulder of the applicant/claimant: see Islam Raja Rais v Director of Immigration HCMP 881/2017; Said Umair v Torture Claims Appeal Board [2018] HKCA 82; and Re Saqlain Muhammad [2018] HKCA 346.

12. It is also trite that high standards of fairness do not automatically entitle the applicant to a further oral hearing after he failed to attend the first one without any explanation, as it is ultimately a question of fairness. The applicant has not explained what additional evidence or arguments he would have put before the Board that would advance his claim even in his application now before me, and given the stated facts of his claim, I do see how a further oral hearing would have assisted him to advance his case before the Board.

13. Furthermore, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicant’s claim is localized in the northern part of the country and that it is not unreasonable or unsafe for him to relocate to other part of Nigeria, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

14. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

15. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Application for extension of time to appeal and grounds for appeal

11.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 5 July 2019, the applicant sought leave to appeal out of time.  His application was dismissed by the judge on 23 September 2019.

12.  By a summons dated 25 September 2019, the applicant renewed his application for an extension of time to appeal before this court.  In his affirmation of the same day filed in support of the application, the applicant deposed that:

“ The Boko Haram and Herds men has been killing my people and my life in the next target. Save my life. My life has no duplicate. I reject the decision because my life is most precious to me.”

13.  In his submissions dated 5 November 2019, the applicant submitted that he was persecuted for having the Christian faith and that his life will be at risk upon his return.  He said his father was killed for being a Christian and his house was burnt down.  The applicant said the Director and the Board did not maintain a high standard of fairness and the Country of Origin Information (“COI”) they relied upon was from Muslim journalists.  He contended that they had misunderstood his materials and failed to consider that the police force was corrupted, incompetent, under-equipped and outnumbered by those persecuted him in holding that state protection was available.  He also said that internal relocation was not an option since a Muslim government is in power in Nigeria.

Discussion

14.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without an oral hearing.

15.  The judge did not regard the delay as serious and focused on the merit of the intended appeal.  We agree that this is the appropriate approach in the present case.

16.  In the court below, the only ground for judicial review advanced by the applicant was that he should have been given a hearing before the Board.  For the reasons given by the judge, such ground has no merit.  

17.  In the present application, the applicant raised a number of new grounds against the decisions by the Director and the Board in his submissions.

18.  It has been held that the court should be cautious against allowing an applicant to advance new grounds for judicial review in an appeal because it would defeat the policy underlying the time limit for bringing judicial review proceedings (see Re Nupur Mst [2018] HKCA 504, CAMP 524/2018 at §14(4)).  This is particularly so when the applicant did not explain the reasons for not raising these new grounds at the court below.

19.  In any event, the new grounds have no merit. The bare assertion by the applicant that it is unsafe for him to return is not by itself a viable ground for seeking leave for judicial review.  In any event, the Board has highlighted numerous inconsistencies in the applicant’s case and rejected the applicant’s contention that it is unsafe for him to return.  We cannot see any error in this finding by the Board.

20.  Likewise, his bare assertions that the Board failed to exercise high standard of fairness and misunderstood the materials cannot avail him by way of appeal.  There is nothing in the evidence to substantiate his contention that the COI relied upon by the Board (which included report issued by the U.S.  Department of State, BBC News report and article, report by Amnesty International) were biased and sourced from Muslim journalists.

21.  In view of the Board’s well-founded rejection of his case of persecution due to his opposition to APC (as APC had yet to be formed in 2012 when he left Nigeria), there was no valid basis for the applicant to challenge the Board’s finding on state protection.  

22.  As we do not see any prospect of success in the intended appeal, we will not grant extension of time for a hopeless appeal. The summons of 25 September 2019 is dismissed accordingly.