RE OKPALA CHINEDU FRANCIS alias CAMARA JOSEPH

HCAL 980/2018

[2021] HKCFI 3544

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 980 OF 2018

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D E C I S I O N

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1.  The applicant is from Nigeria. He is also a national of Guinea.[1] He came to Hong Kong on 16/5/2009 as a visitor. He was allowed to stay until 30/5/2009. He was arrested by the police on 4/2/2010 for overstaying.[2] He filed the non-refoulement claim in this case on 30/6/2010.[3]

2.  The applicant was in fear that his uncle would kill him because of a land dispute.  His late father owned a plot of land at Umvawulu, Nigeria.  His uncle wanted to occupy the land.  About 1986, his uncle cast a spell on his family.  His uncle also poisoned the plot of land leading to the death of his father in 1986.  His family then moved to Oji River, Nigeria.  They were safe until 1997.

3.  In 1997, his mother and siblings returned to Umvawulu to claim the land before the head of the clan.  He did not go with them.  On the way back, his mother and siblings died in a traffic accident.  He believed it was due to the spell.  He then moved to live with his aunt until 2005.  During this period, he had blood in his urine.  The doctor diagnosed that he was also poisoned. 

4.  In 2005, he moved to live with his father’s good friend.  However, he was treated badly.  He decided to leave Nigeria.  Around April 2009, he obtained his passport and a visa to China in Guinea.  He stayed in Guinea for a few months.  He was safe there.  He then returned to Nigeria.  He finally left Nigeria for China by air in May 2009.  He then came to Hong Kong using his Guinean passport.

5.  The non-refoulement claim was dismissed by the Director on 7/6/2016 (1^st decision) [4] and 8/12/2016 (2^nd decision) [5]. 

6.  In the 1^st decision, the Director found that the risk of harm from his uncle was low.  There was State protection in Nigeria and Guinea.  There were viable options for relocation in both countries. 

7.  His appeal to the TCAB of the 1^st decision was dismissed on 8/3/2017.  The adjudicator disallowed late filing of the notice of appeal which was 4 months (about 17 weeks) out of time.[6] There was no appeal in relation to the 2^nd decision.

8.  According to the TCAB record, the applicant wrote to the TCAB on 13/6/2016 that he wanted to delay filing the notice of appeal until he was released from prison as he had health problems and wished to change his lawyer. On 20/6/2016, the adjudicator wrote to the applicant re-iterating the 14-day-time limit.  It was until 20/10/2016 that the TCAB received the notice of appeal from the applicant.[7]

9.  The adjudicator opined that the health problem was a bare assertion without any documentary proof.  The problem with writing did not justify a delay of 4 months.  The adjudicator concluded that it was not unjust to disallow late filing. 

10.  The applicant applied for leave for judicial review of the 1^st TCAB decision on 31/5/2018.  In his affidavit, he mainly complained that he did not have legal representation.  His health was poor.  He disagreed with the TCAB decision. 

11.  Deputy Judge CP Pang wrote to the applicant inviting him to make submissions and whether he wanted an oral hearing.  There was no response.  There was no return of mail.  The Judge dealt with the leave application on paper.

12.  The Judge pointed out that the leave application was out of time for almost a year.  There was no application for extension of time.  There was no explanation for the substantial delay.  There was no medical evidence to support his poor health.  There was no detail about his writing problem.  The Judge concluded that there was no valid reason for the late filing of the notice of appeal to the TCAB.

13.  The Judge noted that the adjudicator had not considered the merits of the applicant’s claim.  However, the Judge commented that the evidence submitted by the applicant was extremely weak.  The assertion that his family had been killed by the spell was too far-fetched and without any evidential basis.  The evidence could hardly establish a real risk of ill-treatment by his uncle.  The Judge agreed with the Director that there was reasonable State protection in both Nigeria and Guinea.  There were reasonable relocation options in Nigeria and Guinea.  Further, the delay for about a year in filing the claim was inconsistent with a genuine fear of danger.  The Judge opined that the applicant’s claim was bound to fail.[8]

14.  The Judge further pointed out that the high standards of fairness did not require legal representation be made available to a claimant at all stages. In fact, the applicant was assisted by the DLS in preparing his submission to the Director.  The Judge also concluded that the Director was correct in rejecting the claim under BOR 2. 

15.  The Judge ruled that the TCAB decision to disallow late filing was correct.  There was no unfairness or unreasonableness.  The intended judicial review was of no merit.  There was no reasonable prospect of success.  The Judge refused extension of time for the leave application and also refused leave for the intended judicial review on 11/11/2020.

16.  The applicant filed a summons on 29/3/2021 for extension of time to appeal the decision of Deputy Judge Pang.  He was more than 4 months out of time. 

17.  In his affidavit, the applicant asserted that he had asked around.  By the time he learned of the time limit, it had already expired.

18.  In considering whether to extend time for appeal against the refusal of leave, this court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.[9]

19.  The delay is substantial.  The explanation is not convincing.  the important issue at this stage is the merits of the intended judicial review [10].

20.  As set out in paragraph 13 above, the evidence in support of the claim was extremely far-fetched.  It was mere assertion without any supporting evidence.  I agree with the Judge that there is no merit in the intended judicial review. 

21.  The Judge noticed that in disallowing late filing of the notice of appeal to the TCAB, the adjudicator had not considered the merits of the applicant’s case as required in Re Qasim Ali.[11] The Judge however found that the outcome would be the same. 

22.  The factual background before the TCAB and Deputy Judge Pang was identical.  Given the flimsy evidence, had the adjudicator considered the merits then, it would be inevitable that he would come to the same conclusion as Deputy Judge Pang.  In the circumstances, it would be futile to quash the TCAB decision and remit it for reconsideration because of the failure to follow Re Qasim Ali.  I agree with Deputy Judge Pang that the outcome would be the same.[12]

23.  In the circumstances, I refuse the application for extension of time to appeal.