RE OBIAGWU OLUCHUKWU CHRISTIAN

CAMP 125/2020

[2022] HKCA 1646

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 125 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 985 OF 2018)

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J U D G M E N T

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

1.  On 8 February 2019, DHCJ KW Lung (“the Judge”) refused to grant an extension of time for the applicant’s application for leave to apply for judicial review concerning his non-refoulement claim (“the JR Decision”) and dismissed his leave application. Under Order 53 r.3(4) Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  Instead of directly appealing the JR Decision, on 14 February 2019, the applicant took out a summons to apply for leave to appeal against the Decision. On 24 May 2019, the Judge dismissed the summons.

3.  The applicant filed a summons on 11 August 2020 in CAMP 125/2020 (“the CA Summons”) for leave to appeal against the JR Decision, although in his affidavit in support, he asked to appeal out of time against the JR Decision. 

4.  On 4 November 2020, the Registrar of Civil Appeals gave directions that in view of the decision of the Court of Final Appeal in H v Director of Immigration [2020] HKCFA 22, the applicant was not required to seek leave to appeal against the JR Decision.  However, as the time for the applicant to lodge an appeal against the JR Decision had expired, the applicant was directed to seek leave from the lower court for an extension of time to appeal the JR Decision on or before 18 November 2020.

5.  As directed, the applicant took out a summons on 18 November 2020 to apply for an extension of time to appeal the JR Decision.  It was dismissed by the Judge on 4 November 2021. 

6.  On 1 December 2021, no doubt in light of the application for extension of time in the supporting affidavit of 11 August 2020, the Registrar of Civil Appeals gave further directions to the applicant to proceed with the CA Summons.  On 10 December 2021, the applicant lodged his written submissions. 

7.  Under Order 59 r. 14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.  

Background

8.  The applicant is a national of Nigeria.  The applicant had come to Hong Kong 8 times since 2004 and he last arrived in Hong Kong as a visitor on 23 October 2008.  He committed robbery shortly after arrival and was arrested by the police on 1 November 2008.  He was convicted and sentenced to imprisonment for 10 years.

9.  He lodged his non‑refoulement claim on 26 November 2008 on the ground that (i) he would be harmed by some unspecified cult people because he had reported a case pertaining to them to the police; (ii) he claimed that he had been harassed by the police for protection money and (iii) he claimed that he would be subject to double jeopardy as the Nigerian government would punish him for committing crime in Hong Kong and he would be subject to imprisonment in Nigeria.

10.  By a Notice of Decision dated 28 May 2015, the Director of Immigration (“the Director”) decided against the applicant’s claim. The Director’s decisions covered the BOR 3 risk[1], the torture risk[2] and the persecution risk[3] (“the Director’s 1^st Decision”).

11.  The applicant appealed the Director’s 1^st Decision to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”).  The applicant attended an oral hearing on 24 August 2016.  By its decision dated 7 March 2017 (“the Board’s 1^st Decision”), the Board dismissed the appeal and confirmed the Director’s decision.  For the reasons set out in [7] to [31], the Board found that the applicant failed to substantiate his claim on all the applicable grounds.  The alleged intimidators were criminals, and save for threats, the applicant was not assaulted or injured in the alleged incidents.  There was no evidence that any of the hostile acts had been instigated or authorized by the state.  His allegation of inaction by the Nigerian police was vague and lacked details.  In any event, internal relocation is a viable option, and relevant country of origin information (“COI”) suggested that there is reasonable state protection.  Further, for the reasons set out in [32] to [35], the Board found that the applicant’s claim failed independently for lack of credibility as he did not raise any claim for non-refoulment, but rather committed a crime of dishonesty after his arrival.  He only raised his claim after his arrest.  The Board did not find him a genuine asylum seeker.  For the aforesaid reasons, the Board rejected his non-refoulement claim.

12.  By a Notice of Further Decision dated 26 April 2017 (“the Director’s Further Decision”), the applicant’s claim on BOR 2 risk[4] was refused.  The applicant appealed but it was dismissed by the Board on 8 September 2017 for reasons set out in [4] to [6] therein as well as the reasons set out in the Board’s 1^st Decision as set out above.  

Application for leave to start judicial review

13.  On 31 May 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Director’s and Board’s decisions. Pursuant to Order 53, rule 4(1) of the Rules of the High Court (Cap.4A), an application for leave to apply for judicial review should be made promptly and in any event within 3 months from the date when the grounds for application first arose. 

14.  In Form 86, the applicant sought an order of certiorari to bring up and quash the Director’s and the Board’s respective decisions on the following grounds:

(1)  The Director failed to maintain a high standard of fairness.

(2)  The Director did not appreciate state acquiescence and the collusion between the police and political circles.

(3)  The Director had selected the country of origin information (“COI”) that suited his pre‑conceived conclusion.

(4)  The Adjudicator failed to make sufficient enquiry before making the determination.

(5)  It was wrong for the Adjudicator to ask for evidence from the applicant because he was being detained.

(6)  The Adjudicator did not give the applicant sufficient chance to arrange relevant evidence to support his case.

The JR Decision

15.  The applicant attended an oral hearing on 28 November 2018.  After due consideration of the decisions of the Director and the Board, the Judge refused to grant an extension of time and dismissed the leave application for reasons set out in [16] - [31] of the JR Decision:

“DISCUSSION

The Director’s Decisions

16.    In my view, the applicant is not entitled to apply for judicial review of the Director’s Decisions without exceptional circumstances.  In Haider Zeeshan v Torture Claims Appeal Board/Non‑Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decisions and this Board has wider power than this Court to make investigations in the matter. The Board had heard his appeal and made its Decisions.

17.    Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.

18.    For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decisions.

The Board’s Decisions – application out of time

19.    Under Order 53, rule 4(1) RHC, the applicant has to take out his application for leave to make an application for judicial review within 3 months from the date when the grounds for the application first arose.

20.    The applicant is out of time for making his application for leave for judicial review of the Board’s Decision (dated 7 March 2017) or the Board’s Further Decision (dated 8 September 2017).  In accordance with the decision of the Court of Appeal in Kwok Cheuk Kin v Leung Chun Yin [2018] HKCA 419, CACV 110/2017 and CACV 162/2017, 23 July 2018, his application cannot proceed without this Court granting him an extension of time. See §28.

21.    The applicant has not made an application for extension of time.  Nor had he given any good reason for this Court’s consideration.

22.    The consideration of whether time should be extended for the applicant to take out this application should be the same as held by the Court of Appeal in Khan Mohammad Shadab [2018] HKCA 897, CAMP 75/2018, 4 December 2018, namely, (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.

23.    This Court considers that there is no reasonable chance of success for the intended appeal for the reasons below.

24.    The applicant appeared before me in the hearing.  He confirmed that he was legally represented and had interpreters at the screening.  He had an interpreter for the appeal hearing before the Board.  He understood all the questions put to him by the Immigration officer and the Adjudicator and his answers to the questions are all true and correct.  Furthermore, he said that he had no complaint against the Immigration officer or the Adjudicator of the Board.

25.    Grounds (1), (2), (4) are the applicant’s opinion, not supported by any evidence. They fail.

26.    Ground (3) is a matter of fact to be found by the Adjudicator. This ground cannot sustain.

27.    The Court of Appeal held in Ali Haider CACV8/2018, [2018] HKCA 222 at §13: ‘Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers.’

28.    At §14 of the same judgment, the Court of Appeal further said: ‘Determination of the merits of a non‑refoulement claim is essentially a matter for the Director and for the Board, not for the court.’

29.    As to ground (5), the Adjudicator was entitled to ask him to adduce evidence to prove his case as the burden is on him.  If he had any difficulty, he should tell the Adjudicator for his determination. This ground fails.

30.    As to ground (6), the applicant was unable to identify what evidence he would like to arrange for his case.  He had no complaint against the Adjudicator. This ground fails too.

31.    I find that the applicant was unable to show that he had reasonable chance of success in his judicial review.”

Application for extension of time to appeal the JR Decision

16.  As mentioned earlier, the applicant filed a summons in the Court of First Instance on 18 November 2020 for extension of time to appeal.  That was dismissed by the Judge on 4 November 2021.  Hence the summons to this court. 

Discussion

17.  In considering whether to extend time for appealing, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted). 

18.  As for (1) and (2), the applicant did not appeal directly to this court but asked for leave to appeal within the time for appeal.  As the judgment in H v Director of Immigration setting out the correct procedure was not delivered until after his action, there is good reason for his delay.  

19.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  The applicant challenged the Board’s finding on credibility.  As rightly explained by the Judge in his decision dated 24 May 2019 at [11], the Adjudicator is entitled to take the applicant’s commission of robbery into consideration when assessing his credibility pursuant to section 37ZD of the Immigration Ordinance (Cap.115) and doubted his true intention of coming to Hong Kong.  The Judge also rejected the Applicant’s challenge on the findings of risk of torture by the Board.

20.  In his summons and supporting affirmation for extension of time before this Court, the applicant failed to pinpoint any error or to provide any ground to reverse the JR Decision. 

21.  In his written submissions, he quoted passages from ST v Director of Immigration^[5][2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 stating that high standards of fairness should be applied to the determination of a non-refoulement claim, and complained that the Board had acted in a procedurally unfair manner without properly assessing his credibility.  The applicant further referred to section 37ZT of the Immigration Ordinance.

22.  It is clear from the Board’s decision that the applicant’s claim was rejected on the independent ground of credibility.  In the circumstances, the Board had grounds to suspect that his true intention of coming to Hong Kong was for financial reasons rather than to seek protection.  Further, on the applicant’s own account of events, he did not suffer any assault or injury in the alleged incidents.  In our view, it is perfectly open for the Board to reach its findings and conclusions and the Court would only intervene if there were valid public law grounds.  As with the Judge, we do not see any in this case. 

23.  We are satisfied that the Judge had reviewed the Board’s decisions with rigorous examination and anxious scrutiny and had applied the right test set out in AW v Director of Immigration and William Lam CACV 63/2015, 3 November 2015 at [27] in refusing to grant an extension of time for the application for leave to apply for judicial review.  We find nothing amiss in the JR Decision.    

24.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 11 August 2020.