RE ANACHEBE CHIBUZOR REUBEN

CAMP 75/2024, [2025] HKCA 782

On an intended appeal from [2023] HKCFI 2472

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 75 OF 2024

(ON AN INTENDED APPEAL FROM HCAL 878/2019)

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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 14 December 2023 refusing to extend time for the applicant to appeal against his decision dated 5 October 2023 refusing to grant 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 (“the Board”) dated 1 March 2019 (“the Board’s 2^nd Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 7 September 2017 rejecting the applicant’s non-refoulement claim based on the BOR 2 risk[1] (“the Director’s 2^nd Decision”).

Background

2.  The applicant is a national of Nigeria.  He entered Hong Kong illegally on an unknown date, and was arrested by the police on 9 June 2015.  Thereafter, he lodged a non-refoulement claim by way of a written signification, which was received by the Immigration Department on 18 June 2015.

3.  The applicant’s claim was based on a fear of being harmed or killed by members of the OGB Brotherhood, which is a branch of a Nigeria‑based religious movement, Brotherhood of the Cross and Star.  The details of the applicant’s claim have been summarised by the Judge at [3] to [5] of his decision (“the CALL-1 Form”)[2].

4.  By a Notice of Decision dated 14 December 2015 (“the Director’s 1^st Decision”), the Director decided against the applicant’s claim.  The Director’s 1^st Decision covered the torture risk[3], the persecution risk[4], and the BOR 3 risk[5].

5.  The applicant appealed to the Board, but filed his notice of appeal out of time (by over 9 weeks).  By a decision dated 5 May 2017 (“the Board’s 1^st Decision”), the Board refused the applicant’s application for late filing of his appeal.

6.  Subsequently, by the Director’s 2^nd Decision, the applicant’s claim based on the BOR 2 risk was dismissed.  The applicant appealed against the Director’s 2^nd Decision to the Board.  After a hearing on 7 January 2019, the applicant’s appeal was dismissed by the Board’s 2^nd Decision.  The Board found the applicant’s evidence to be inconsistent and contradictory, as he had testified to 3 different versions of events which apparently caused his concern of being harmed if refouled.  The Board found that there is no real risk of harm to the applicant in Nigeria on the facts and evidence.  Moreover, the Board was satisfied that suitable options of internal relocation, as well as adequate state protection, were available to the applicant to minimise the risk of harm, if any.

The Judge’s decision

7.  The applicant filed a Form 86 on 1 April 2019, seeking to judicially review the Board’s 2^nd Decision (but not the Board’s 1^st Decision).  He contended in the Form 86 that the Board breached principles of procedural fairness by reasons that, inter alia, it acted in an unreasonable or irrational manner “in the public law sense” and failed to meet the greater care and duty owed to a self-represented claimant such as the applicant.

8.  In his supporting affirmation, the applicant contended, inter alia, that the Board had wrongly relied on news which were “not officially recognised” and that the Board had made groundless speculations on the situation in his country.

9.  After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused leave for the applicant to apply for judicial review.  The Judge gave the following reasons in refusing leave at [16] to [22] of the CALL‑1 Form:

“16.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he understood the Director’s Decisions and the Board’s Decisions and he did not have much to say. He said that he has a family with a daughter here and he wants more time to sort out his own problem.

18.  Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13.(1) …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.’

19.  The Board did not accept his evidence of the facts and found that state protection and alternative internal relocation are available to him. These remedies and alternative option are also applicable to his appeal against the Director’s First Decision though he was out of time to file his Notice of Appeal. There is no valid reason to challenge the Board’s Second Decision.

20.  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.

21.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

22.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Second Decision. Accordingly, I dismiss his application.”

The present application for extension of time to appeal

10.  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order was sent by post to the applicant at his last known address on 5 October 2023, and was not returned undelivered.

11.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 5 October 2023.

12.  The applicant thereafter took out a summons in the Court of First Instance on 30 October 2023 seeking extension of time to appeal.  In the summons and in his supporting affirmation filed on the same date, he essentially complained, inter alia, that he had been prejudiced in the proceedings because he did not have legal representation, and thus he was unaware of the time limits.

13.  The applicant’s application to appeal out of time was dismissed by the Judge on 14 December 2023[6].

14.  By a summons filed on 24 April 2024, the applicant renewed his application for an extension of time to appeal before this court.  In the summons, the applicant stated that he wished to appeal against the decision given by the Judge on 14 December 2023, being the Judge’s refusal to grant an extension of time for him to appeal against his decision dated 5 October 2023.  Although in the summons the applicant purported to seek leave to appeal against the decision of the Judge dated 14 December 2023, we shall treat it as a renewed application for an extension of time to appeal against the substantive decision of the Judge dated 5 October 2023, by which leave for judicial review was refused.

15.  In the summons and his supporting affirmation, the applicant asked this court to grant him an extension of time to appeal by reason that, inter alia, he was “unrepresented and did not have access to any legal advice”.

16.  In his written submissions lodged on 8 May 2024, the applicant referred to the well-established principles in ST v Director of Immigration (sic)[7] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514.

Discussion

17.  Having considered the papers, 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.

18.  As noted above, the Judge’s decision was sent to the last known address of the applicant, but was not returned undelivered.  The inference to be drawn is that the applicant has had notice and knowledge of the Judge’s orders and the contents of the CALL-1 Form in the period within which he was permitted to lodge an appeal.

19.  In any event, it was also incumbent upon the applicant to notify the court of any change of address as soon as possible.  The consequences of failure to do so must lie with him. 

20.  We are therefore of the view that the applicant has proffered no reasonable reason or explanation for the delay in bringing the intended appeal, nor has he explained when he had come to learn of the Judge’s decision.

21.  The applicant was also out of time by over 4 months in renewing his application for extension of time to appeal before this court.  The delay is substantial and thus the present application is liable to be dismissed on this basis alone.  However, we have nonetheless proceeded to consider the merits of the intended appeal.

22.  The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its 2^nd Decision, or how such Decision could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

23.  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.

24.  It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.

25.  We are unpersuaded by the applicant’s complaint of a lack of legal representation, as the high standards of fairness applicable do not require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

26.  Further, there was no attempt by the applicant to elaborate on whether and, if so, how the trite principles referred to in his written submissions had not been applied in the consideration of his leave application by the Judge and in the processing of his non-refoulement claim.

27.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 24 April 2024 is accordingly dismissed.