RE TOCHUKWU PETER OBIMEZIE

CACV 649/2020

[2022] HKCA 1732

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 649 OF 2020

(ON APPEAL FROM HCAL NO. 1902 of 2018)

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JUDGMENT

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

The appeal

1.  By a Notice of Appeal dated 22 December 2020, the applicant sought to appeal against the decision[1] of Deputy High Court Judge P Li (“the Judge”) given on 18 December 2020 refusing his application for leave to apply for judicial review.

2.  The intended judicial review is against the decisions of the Director of Immigration (“the Director”) rejecting the applicant’s non-refoulement claim and the decision of the Non-refoulement Claims Petition Office/ Torture Claims Appeal Board (“the Board”) dismissing his appeal against the Director’s decisions.

3.  On 8 March 2021, the Registrar of Civil Appeals directed the applicant to lodge with the Court three copies of appeal bundle by 29 March 2021. The direction was communicated to the applicant by letter dated 9 March 2021. As the applicant did not lodge the appeal bundles by the time stipulated in the direction, the Registrar of Civil Appeals directed on 12 April 2021 that the Applicant shall lodge with the Court three copies of appeal bundle by 26 April 2021. The direction was communicated to the applicant by letter dated 14 April 2021.

4.  Upon the applicant failing to comply with the direction, the Registrar of Civil Appeals ordered on 18 May 2021 that unless he lodged with the Court three copies of appeal bundle by 1 June 2021, the matter will be referred to the Court of Appeal for consideration of imposition of an unless order, which provides for the consequence of default to be the dismissal of the appeal. The order was communicated to the applicant by letter dated 20 May 2021. The applicant did not comply with the order.

The Unless Order and the dismissal of the appeal

5.  On 10 June 2021, having regard to the applicant’s repeated default, Chu JA made an unless order (“Unless Order”), which was communicated to the applicant by letter dated 11 June 2021. The Unless Order stipulated that:

“Unless by 4:00 pm on 24 June 2021 the applicant lodges with the Court three (3) sets of appeal bundle, the appeal shall, without further notice, stand dismissed.”

6.  The applicant did not comply with the Unless Order. Consequently, the appeal was dismissed on 25 June 2021. The order dismissing the appeal was mailed to the applicant by letter dated 28 June 2021.

7.  The several letters from the Court communicating the directions and order of the Registrar of Civil Appeal, and the Unless Order and the order dismissing the appeal were all sent to the address provided by the applicant in the notice of appeal (“the Address”) by ordinary post. The Unless Order and the order dismissing the appeal were further sent by registered post. All the letters had not been returned by the post office.

The application for relief from sanction

8.  On 23 June 2022, the applicant filed a summons together with an affirmation to apply for relief from the sanction imposed by the Unless Order. The applicant had also put in a written submission to support the application.

Our reasons for decision

9.  Having considered the applicant’s summons, affirmation, and written submission, we are of the view that it is appropriate to determine the applicant’s application on the paper without an oral hearing.

10.  Order 2 rule 4 of the Rules of the High Court, Cap. 4 provides that:

“Where a party has failed to comply with a rule or court order, any sanction for failure to comply imposed by the rule or court order has effect unless the party in default applies to the Court for and obtains relief from the sanction within 14 days of the failure.”

Since the applicant’s summons was filed more than 14 days after the time set by the Unless Order had lapsed, the dismissal of the appeal has taken effect.

11.  Under Order 2 rule 5(1), when dealing with an application for relief from the sanction imposed by the failure to comply with a court order, the Court shall consider all the circumstances, including, among others, the interests of the administration of justice, whether the application for relief has been made promptly and whether there is a good explanation for the failure to comply.

12.  The summons only asked for relief from the Unless Order. In his supporting affirmation, the applicant stated that he did not receive the Order dated 25 June 2021 dismissing his appeal due to non-compliance of the Unless Order, and it was on 14 June 2022 that he received the Order from his landlord. He explained that he rented a sub-divided unit and was not given the key to the letter box by the landlord, who would collect the letters and distribute them once or twice a month at his convenience. He also said that he had to rely on assistance and advice from friends as he was uneducated and did not have money to hire a legal representative or an interpreter.

13.  In our view, the applicant has failed to satisfactorily explained his failure to comply with the court orders and the Unless Order. First, there is no explanation for the failure to comply with the directions and order of the Registrar for Civil Appeals as well as the non-compliance with the Unless Order. Second, according to what he said, the landlord would distribute letters once or twice a month; he should therefore have received the several court letters conveying the court directions and order as well as the Unless Order, although not immediately. Yet he did not comply with any of them or seek extension of time to comply with them. Third, there is also no explanation why the landlord should withhold the order 25 June 2021 from the applicant for almost a year before giving it to him on 14 June 2022. In short, the applicant has failed to show that his delay is excusable.

14.  Even if we were to accept that the non-compliance with the Court’s directions and the Unless Order was excusable, we are of the view that, in the circumstances of this case, we should not exercise our discretion to grant relief from the sanction imposed by the Unless Order. This is because, for the reasons given below, the appeal has no merits and is bound to fail.

15.  The applicant is a Nigerian national aged 43. He has since 4 November 2008 overstayed in Hong Kong, and was arrested by the police on 30 July 2012. He later raised a torture claim[2], which was refused by the Director on 23 January 2013. His appeal to the Board was dismissed on 2 April 2014. In the meantime, he raised a non-refoulement claim based on his fear of being harmed or killed by the Muslims and Boko Haram as he is a devout Christian. The applicant’s claim was set out in detail in the Director’s first decision and the Board’s decision and summarised by the Judge at [3] to [15] of CALL-1 Form dated 18 December 2020.

16.  In gist, the applicant and his family are devoted Christians. However, the majority of the population where they live (Maiduguri) are Muslims. The applicant had experienced bullying, discrimination, threats and attacks by local Muslims both in school and when he ran his own business. Between 2006 and 2008, the applicant encountered five attacks from Muslims, including those belonging to the Boko Haram, as they were targeting Christians. He did not sustain any serious physical injury but suffered mental distress. Through the arrangement of an agent, he came to Hong Kong.

17.  By two decisions dated 16 March 2016 and 16 June 2017, the Director rejected the applicant’s claim. The first decision covered the BOR 3 risk[3] and persecution risk[4] grounds, and the further decision covered the BOR 2 risk[5] ground.

18.  The applicant’s appeal to the Board was heard on 17 April 2018, during which the applicant was represented by a lawyer assigned by the Duty Lawyer scheme. The applicant did not give evidence. There was no dispute as to credibility and the Director accepted what had happened as recounted by the applicant. In its decision dated 2 April 2014, the Board noted there were lengthy gaps between the five attacks. In respect of the 2^nd and the 5^th incident, the evidence did not show that they were attacks by Muslims against Christians in general. In the case of the 4^th incident, the evidence shows that the Muslims had no intention injure anyone. As for the 1^st and 3^rd incident, the applicant sustained minor cut and was not seriously injured. The Board found no evidence of the applicant being targeted by the Muslims or Boko Haram or that he had sustained physical injuries or mental suffering to the requisite degree of severity. The Board also found that state protection was available and internal relocation was viable, which would reduce any risk of harm that he might face. The Board concluded there was no real risk of torture or harm if the applicant were to return to his home country and that none of the applicable grounds being considered was made out.

19.  On 11 September 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the decisions of the Director and the Board.

20.  The applicant did not provide any ground to support his intended judicial review application. In his supporting affirmation, he stated “Religion crises and after my life and don’t want to go back because of my life.”

21.  The Judge dealt with the application on the papers. On 18 December 2020, the Judge refused to give leave to apply for judicial review as he considered there was no reasonable prospect of success. He gave his reasons in [29] to [32] of the Form CALL-1 as follows:

“29. In a leave application, this court would consider whether there is any error of law or procedure. Whether the decisions of the TCAB and the Director were reasonable. This court would not interfere with the finding of facts unless it is obviously wrong.

30. The adjudicator had analyzed the evidence in detail. He correctly pointed out the important aspects of the applicant’s story. The adjudicator found that the applicant did not suffer physical or mental suffering.

31. In my view, his conclusion is reasonable. There is no error of law and procedure in both decisions.

32. The applicant sent in 12 pages of documents to this court on 16/3/2020. Some of them are from Human Rights Watch [21] and others appear to be newspaper reports of unknown sources. As mentioned above, it is the duty of the TCAB to ascertain the facts at the time of the assessment. It is not for this court to do so in a leave application. In any event, those documents show that the Boko Haram insurgency was still active in Nigeria, it could not establish that the applicant was under real and personal risk of harm at the time of the assessment. Those documents could not take the leave application any further.”

22.  The notice of appeal did not set out any grounds of appeal. It only stated that the applicant could not be returned to his home country as his life is in danger. In his affirmation in support of the present application, the applicant stated that he understood there was a good ground of appeal that was not necessarily considered at the stage of applying for leave to bring judicial review. But he has not given any elaboration or particulars about the ground of appeal.

23.  The written submission quoted extensively from cases on the high standards of justice and the Wednesbury unreasonableness principle. It complained that the Board acted in a procedurally unfair manner. It also referred to section 37ZT of the Immigration Ordinance relating to late filing of notice of appeal.

24.  For the reasons set out below, we are of the view that the intended appeal is unarguable:

(1)  In an appeal against the refusal of leave to apply for judicial review, the focus is on the correctness of the decision and reasoning of the judge below. In this case, the applicant did not provide any grounds in support of his intended judicial review. The Judge, for the reasons he gave, refused to give him leave to apply for judicial review. No grounds of appeal were set out in the notice of appeal. The arguments put forward by the applicant in this application appeal have not addressed the Judge’s reasons for dismissing the application, and failed to identify any error in the Judge’s reasons.

(2)  The applicant’s complaint of procedural unfairness against the Board is a bare assertion not supported by any particulars. We also note that the applicant was legally represented before the Board.

(3)  The reference in the written submission to section 37ZT is misplaced as the case does not concern late filing of appeal before the Board.

(4)  It has also not been shown how the cases and principles mentioned in the written submission relate to the applicant’s case or his appeal.

27.  As the applicant’s appeal has no merits and is bound to fail, it would be futile to grant relief and allow the applicant to proceed with the appeal. It is also not in the interest of administration of justice to grant the relief sought.

28.  Accordingly, we refuse to give relief from the sanction imposed by the Unless Order, and dismiss the summons filed on 23 June 2022.