RE SUNDAY PETER ATYH alias SHABU YABRE

HCAL 2092/2019

[2022] HKCFI 2232

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2092 OF 2019

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D E C I S I O N

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Introduction

1.  This is the Applicant’s application by summons filed on 13 May 2022 (the “Summons”) for extension of time to appeal the order of Deputy High Court Judge Li (“DHCJ Li”) dated 15 December 2021 (the “Order”) refusing his application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 14 June 2019.  

2.  In gist, the Applicant’s case is that he was a failed drug mule who was arrested by the Hong Kong authorities for trafficking in dangerous drugs for a drug syndicate.  He was convicted of the offence and sentenced to 14 years’ imprisonment.  He was discharged from prison in January 2019 after serving his sentence.  His claim for non-refoulement protection is based on his fear of harm and risk of harm from the drug syndicate he worked for as he could not return the dangerous drugs seized by the Hong Kong authorities.  

The Law

3.  In Jagg Singh v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office[1], the Court of Appeal held that what may constitute a good reason for extending time cannot be defined. In most cases, this would be a “multi-faceted question” the answer to which would depend on the circumstances of each case.  The following factors, which are not exhaustive, are likely to be of significance in determining whether to grant extension of time:

(1)  length of delay;

(2)  reasons for the delay;

(3)  prospect of success of the intended appeal;

(4)  prejudice to the respondent if extension of time was granted.

Length of delay and reasons for the delay

4.  By 13 May 2022 when the Summons was filed, 149 days had lapsed since the date of the Order.  The application is 135 days out of time, which is very substantial in the context of a fourteen-day appeal period.  In his supporting affirmation, he attributed the delay to his late receipt of the Order, the Covid-19 lockdown in Tai Tam Gap Correctional Institution (the “Institution”) where he was detained, the closure of the High Court Registry and his lack of legal knowledge and assistance while in custody.

5.  At the material time, the Applicant was detained in the Institution. Pursuant to the Court’s direction, he obtained and produced a copy of Prisoners’ Incoming Mail Register from the Institution showing that he received the Order through the Institution on 29 December 2021.  That explained the delay of the first 14 days.  If time were to start to run from that day on, he should have filed his notice of appeal on or before 12 January 2022.  He did not.

6.  He said he was informed by the Welfare Officer in the Institution that the officer could not file the notice of appeal for him until 11 April 2022 due to closure of the High Court Registry.  Hence, he could only file his Summons on 13 May 2022.  That explanation consists of partial truth only.  The Registry of the High Court was closed from 7 March 2022 until 11 April 2022.  Had he prosecuted his appeal timeously, he could have completed the documentation and given the notice of appeal to the Welfare Officer on or before 12 January 2022 for filing.  Alternatively, he could have filed the Summons seeking extension of time to appeal on or before 6 March 2022 when the Registry was still open. 

7.  The Applicant attributed the rest of the delay to his lack of legal knowledge; lack of access by his friends due to the lockdown by the Correctional Services Department, who could otherwise have helped him; and that he was still waiting for additional grounds or evidence to support his intended appeal.  Lack of legal assistance or assistance generally is not a valid explanation for the delay and cannot prevent a layman from filing his notice of appeal setting out what in his mind are valid grounds of appeal and leaving the question of merit to the court to decide in due course.  The lockdown by the Correctional Services Department and the closure of the Registry did not prevent the Applicant’s mind from working on his appeal and to have the documentation ready when the Registry re-opened.  

8.  As for his excuse that he was waiting for additional grounds, he either had those grounds or he had not.  If he had, he would have no excuse waiting. If he had not, it is just a mere excuse.  As for the additional evidence, as a matter of law only evidence at the time of the Decision of the Board is relevant.  The relevant date at which to assess an applicant’s claim is the time the decision is made, that is whether the alleged risks exists at the time of the hearing by the Board: see Chahal v United Kingdom[2] and Ubamaka Edward Wilson v Secretary for Security and Anor[3].  Evidence relating to the circumstances after the Decision is not relevant and inadmissible.  Even if the evidence relates to circumstances at the time of the hearing, it may not be admissible on the hearing of an appeal unless it meets the requirements in Ladd v Marshall[4], particularly that the evidence could not have been available at the time of hearing before the Board.

9.  The Court understands that a person in custody is at a disability and has difficulties in complying with deadlines.  Even allowing for that disability and attributing the delay between 11 April and 13 May 2022 to the processing by the Welfare Officer and Correctional Services Department, there was a complete lack of explanation for a very substantial delay of three months between 12 January and 11 April 2022.  The Applicant has no valid or reasonable explanation for the delay.

Prospect of success of the intended appeal

10.  In assessing the prospect of success of the intended appeal against the court’s refusing leave to apply for judicial review, the court could only assess on the basis that an applicant may only challenge the Board’s finding on the grounds that it was made as result of errors of law, procedural unfairness or that the Decision was irrational: see Nupur Mst v Director of Immigration[5]. The Applicant’s grounds of appeal have to be assessed in the above light.  He lodged a statement making 12 points under three different headings of basis for appeal, skeleton arguments and evidence to be submitted.  They contain legal propositions, arguments and evidence.  For convenience, I shall treat all the points as grounds of his intended appeal and deal with them below.

(1)  Applicant has the duty to substantiate his torture claim:

11.  This is a legal proposition which this Court has no disagreement.  There is no suggestion or allegation that the Board or DHCJ Li departed from this principle.  If they had, it would only work to the Applicant’s advantage.  This ground does not assist the intended appeal.

(2)  Request for oral hearing to allow the Applicant to supplement his case and provide further evidence

12.  The ‘oral hearing’ referred to an oral hearing of the judicial review if leave is granted.  In all probability, if leave is granted, an oral hearing will be held.  Whether the Applicant will be allowed to adduce further evidence will be an issue to be determined in that hearing. This ground is not relevant for the leave application before DHCJ Li.  It was open to the deputy judge to determine whether to determine the application by way of paper or oral hearing.  In the majority of cases, such leave applications are determined on paper.  Given the nature of this application and the evidence, I also consider paper determination appropriate.

(3)  Burden of proof

13.  The Applicant submitted that the standard of proof required is not high.  This is a legal proposition which this Court has no disagreement.  There is also no suggestion that the Board or DHCJ Li departed from this standard. 

14.  The Applicant argued that his life will be in danger if returned to Nigeria and referred to his Exhibit SPA-1 and SPA-5A to 5C as fresh evidence in support.  Presumably, it is his argument that these exhibits would meet this relatively low standard of proof.  The fresh evidence relates to the current circumstances in Nigeria after the date of the Board’s Decision.  As such, they are not admissible for the purpose of the leave application before DHCJ Li or the intended appeal.  Furthermore, Exhibit SPA-1 relates to anti-Christian violence which is not the kind of risk claimed by the Applicant.   Exhibit SPA-5A to 5C relate to a murder arising from some failed drug business deal which is also not the kind of risk claimed by the Applicant.

(4)  Form Call-1, paragraph 23(e)

15.  This is the double jeopardy ground raised by the Applicant in his application for leave to apply for judicial review.  It was dealt with by DHCJ Li in his paragraphs 26(e) and (f). 

(5)  Form Call-1, paragraph 26(e) and (f)

16.  In these two sub-paragraphs, DHCJ Li dealt with the Applicant’s argument about double jeopardy, ie he will, if refouled, be prosecuted and imprisoned for drug trafficking by the Nigerian authorities in respect of which he had already served his sentence in Hong Kong.  In paragraph 26(e), DHCJ Li said that this argument had not been raised by the Applicant before the Board.  In paragraph 26(f), DHCJ Li held as a matter of law even if the Applicant were indeed prosecuted under section 22 of the Nigerian National Drug Law Enforcement Agency Act, it would not infringe article 11(6) of the Hong Kong Bill of Rights Ordinance which does not apply to the jurisdiction in Nigeria and therefore not constitute double jeopardy.  He also held that there was no evidence that the Nigerian government had any intention to prosecute the Applicant and no evidence that the Applicant would not face a fair trial.  I can detect no error of law in the above finding.

(6)  Director’s Notice of Decision, No.15

17.  This refers to paragraphs 18.2 to 21 of the Director’s Notice of Decision contained in page 15 of the hearing bundle before the Board.   In those paragraphs the immigration officer referred to authoritative and credible country of origin information (“COI”) about the seriousness of corruption and violation of human rights in Nigeria and Guinea Bissau.  The Applicant argued, referring to his Exhibit SPA-1, that that situation still exists in Nigeria.

18.  However, what he did not mention was that the immigration officer also noted from the COI the effectiveness of state protection.  While acknowledging the seriousness of police corruption in these countries, in the eventual analysis the officer found in paragraph 21 that both the Nigerian and the Guinea Bissau authorities have demonstrated their ability to deter against and to strike their efforts to contain corruption and are willing and able to offer sufficient protection to citizens against crime.

19.  The Board did not seem to have specifically referred to any of the COI as had the Director.  But it discussed the issue of state protection extensively in paragraphs 51 to 56 of its Decision.  It referred to applicable legal principles and authorities about the standard and sufficiency of state protection.  In paragraph 55, it mentioned the COI in the hearing bundle which included all the COI quoted by the Director in his Notice of Decision.  It considered the Applicant’s answers during the screening interview dismissing all the suggestions made by the immigration officer about the possibility of seeking help from the police and other enforcement agencies in Nigeria.  It noted the law enforcement agencies in Nigeria and their powers of investigation, arrest etc.  It was against that background that the Board held in paragraphs 81 and 82 of its Decision that there was no reliable evidence to show that the governments of Nigeria and/or Guinea Bissau had been unwilling or unable to afford protection to the Applicant or to help him for a reason protected under the Convention relating to the status of Refugees.  Clearly, the Board had considered the COI and came to the conclusion based on these authoritative and credible COI that police protection is available in Nigeria and/or Guinea Bissau against the risk of harm from the drug syndicate.  The Applicant sought to challenge this finding.  This is a finding of fact which the court in a judicial review will not interfere unless it was made as a result of error of law, procedural unfairness or that the decision is irrational.

(7)  Possibility of internal relocation in Nigeria

20.  Under this ground, the Applicant challenged the Board’s finding that he could avoid the risk of harm by internal relocation.  This finding was made after the Board had considered the authoritative and credible COI in paragraphs 54, 100 to 102 of its Decision.  It is a finding of fact which the court in a judicial review will not interfere except for reasons mentioned above.

(8)  Director’s Notice of Decision, No.14

21.  This ground referred to paragraph 17 of the Notice of Decision contained in page 14 of the hearing bundle before the Board.   In that paragraph, the immigration officer raised doubt about the genuineness of the Applicant’s claim from his failure to promptly seek non-refoulement protection after arriving in Hong Kong, not until towards the end of his 14 years’ imprisonment (effectively, 10 years’).  He explained that was because he was in a state of extreme shock and severe depression.  He was then only thinking about how to survive as a foreigner in a prison abroad.  This is again a finding of fact for the immigration officer.  The immigration officer’s doubt is an inference which could reasonably be raised from the surrounding circumstances. Furthermore, the Applicant could not be in a state of extreme shock and depression throughout his entire prison term of 10 years.  There was no error of law, procedural unfairness or irrationality in the finding.

(9)  Asks for time to procure documents

22.  Under this ground, the Applicant asked for time to allow him to procure documents from Nigeria including current local/city news story reports.  As already explained in paragraph 8 above, the relevant date at which to assess an applicant’s claim is the time the decision is made.  Current news and story reports are irrelevant.  Such evidence clearly could not satisfy the requirements in Ladd v Marshall.  One class of documents which he sought to produce at the hearing is precedents relating to torture claims.  This question would not arise unless and until he has obtained leave to apply for judicial review. 

(10)  ADDITIONAL SUBMISSIONS PART II

23.  Under this ground, he submitted that the Board erred in law or misdirected itself in its evaluation of the credibility of his claim.  In essence, he was seeking to challenge the Board’s and/or the Director’s finding based on the COI that state protection is available despite the serious and widespread corruption in Nigeria.  That finding is a finding of fact solely within the province of the Director and the Board which this Court will not interfere unless it is vitiated by errors of law, procedural unfairness or is irrational. He also sought to rely on his Exhibit SPA-3 to support his feared risk of harm and as evidence that the Nigerian government was unable to protect its citizens from risk of harm.  Exhibit SPA-3 is a current news report of the kidnap of Chinese workers at a Nigeria power plant in January 2022.  Quite apart from the fact that it is inadmissible because it is  evidence of the current situation in Nigeria and not the prevailing situation at the time of the Decision, the risk reported is not the kind of risk relied on by the Applicant in his claim or the kind of risk protected under the USM.  It is irrelevant.

(11)  Form Call-1, paragraph 26(c)

24.  Under this ground, the Applicant sought to challenge DHCJ Li’s finding in this sub-paragraph that the Applicant’s personal circumstances had been sufficiently considered by the Board when assessing availability of internal relocation and state protection.  This is DHCJ Li’s observations of a finding of fact by the Board which is well supported by paragraphs 17 to 20 above, to which I also agree.

(12)  Form Call-1, paragraph 26(b)

25.  Under this ground, the Applicant sought to challenge DHCJ Li’s observation that as the Applicant had never reported the threats to the Nigerian or Guinea Bissau authorities, the issue of state acquiescence did not arise.  Here, the Board’s finding is that the drug syndicate were not state actors (paragraph 55 of the Decision); that there was no evidence that any public official or persons able to wield the authority of the government and/or state had any connection with the drug syndicate (paragraph 77 of the Decision); or that the government and/or state and/or other authorities in Nigeria and/or Guinea Bissau had acquiesced in the alleged ill-treatment of the Applicant (paragraph 78 of the Decision).  DHCJ Li’s observation endorsed those findings.  As these are finding of facts by the Board which the court in a judicial review will not interfere, I can find no valid criticisms on that observation.  

26.  Furthermore, “state acquiescence” in the context of the four applicable grounds under the USM means consent, agreement, connivance etc of the state to ill-treatment inflicted on an applicant.  Here, the Applicant relied on his Exhibit SPA-2 and particularly to the statement of the governor of the State of Kaduna that he would not pay ransoms or negotiate with bandits responsible for the mass abduction of children reported in that article, even if his own son was among the kidnapped.  That was a statement of the government’s stance in not negotiating with terrorists.  Whether the Applicant or Nigerians like it or not, it is the official stance well adopted by many credible governments. It has nothing to do with state acquiescence nor does it reflect lack of state protection. On the contrary, it reflects the state’s determination to fight terrorists.  It is the price which the state and its citizens have to pay for the greater protection of its own citizens.  It must also be noted that a claimant is only entitled to state protection of an adequate standard and not an absolute standard which will ensure that he would be safe under all circumstances.  I also repeat my observation that the exhibit is not admissible as evidence before the Board.

27.  In essence, the Applicant’s grounds of appeal are challenges against the finding of fact of the Board which are not permissible in an application for judicial review.  All his objections to the finding of fact had been considered by the Board and by DHCJ Li the Form Call-1.  The decision to refuse his application for leave to apply for judicial review was made after rigorous examination of the Decision and all the papers with anxious scrutiny.  Given the limited scope in which an applicant may challenge the finding of fact by the Board in a judicial review and having rigorously re-examined the Form Call-1 and the Decision with anxious scrutiny, I am satisfied that there is no error in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision is not irrational.  It does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault.  The Applicant’s claims and his grounds of appeal are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review or the intended appeal. 

Prejudice to the respondent

28.  The prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed is obvious.  The delay is by itself an abuse of the process of the court and the non-refoulement protection arrangement.  To allow the challenge to proceed would encourage other claimants to indulge in such abuse.  It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court.  It would render it difficult for the Director to perform his duty of maintaining immigration control.  Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment.  This application does not raise any questions of general public importance.  Allowing the application may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

29.  The Applicant has no arguable grounds of appeal and has no valid explanation for the very substantial delay.  His intended appeal has no prospect of success.  To allow such an un-meritorious challenge to proceed would be prejudicial to the intended respondent and the administration. Accordingly, his application for extension of time to appeal is refused.