RE AGARA ISAIAH BISHOP

CAMP 127/2020

[2021] HKCA 792

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 127 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 977 OF 2017)

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J U D G M E N T

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

Introduction

1.  On 2 October 2019, DHCJ Bruno Chan (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 1 September 2017 (“the Decision”). In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 17 February 2017 rejecting the applicant’s non-refoulement claim.

2.  The applicant lodged a summons on 24 December 2019 seeking an extension of time to appeal against the Decision.  On 28 July 2020, the Judge refused to grant him leave to appeal out of time against the Decision (“the Leave Decision”).

3.  By a summons dated 11 August 2020, the applicant now renews his leave application before this Court.  Pursuant to the directions of the Registrar of Civil Appeals given on 5 November 2020, the applicant lodged his written submission on 20 November 2020. 

4.  Having considered the summons, the supporting affidavit and the written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

5.  The applicant is a national of Nigeria who arrived in Hong Kong on 23 April 2011 with permission to remain as a visitor, during which he married a local resident.  He was later arrested by police for trafficking in dangerous drug, for which he was subsequently convicted and sentenced to a seven years and four months’ imprisonment.  On 2 November 2016, a deportation order was issued against him. On 10 November 2016, he lodged a non-refoulement claim by way of written representation on the basis that if he were to return to Nigeria he would face the risk of double jeopardy for his drug offence committed in Hong Kong and the resultant inhumane and degrading conditions in Nigerian prison, as well as risks of harm for being a homosexual and a Christian from various terrorists or military groups in Nigeria including Boko Haram, the Movement for the Actualization of the Sovereign State of Biafra (“MASSOB”) and the Niger Delta Avengers (“NDA”).

6.  By the Notice of Decision dated 17 February 2017, the Director decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

7.  The applicant appealed to the Board. After the hearing on 17 August 2017, the Board dismissed the appeal on 1 September 2017. For the reasons and analysis stated in [30] to [48] of its decision, the Board found the applicant’s claim regarding the double jeopardy issue fell far short of meeting both the substantial risk and minimum level of severity requirements. Further, his evidence regarding his fear of harm for being a homosexual was not plausible, frank or internally consistent and that such claim was calculated and tailored to strengthen his non-refoulement claim. The Board found that the applicant had failed to show any genuine or substantial risk of harm that the police would persecute him for his alleged connection with MASSOB, and that his fear of risk of persecution from Boko Haram for being a Christian is only a general risk at the same level as any other Christians in Nigeria and hence not sufficient to justify protection from refoulement. In any event state protection and reasonable internal relocation alternatives would be available to the applicant. For the aforesaid reasons, his non-refoulement claim failed on all applicable grounds.

The Judge’s decision

8.  On 29 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision.  In his supporting affidavit of the same date he advanced the following grounds for his intended challenge:

(1)  the Board made legal error in its decision in relying the judgment of Ubamaka to find that his claim was solely based on his fear of being refouled to Nigeria on the double jeopardy issue when in fact there was also his fear of being persecuted by the Nigerian authorities for his affiliation with the MASSOB group for which he would be charged with treason in Nigeria.

(2)  The Board improperly used and relied on irrelevant Country of origin information (“COI”) provided by or sourced from UK and EU to assess the condition of prisons in Nigeria that the applicant may face in his CIDTP claim.

(3)  The Board interpreted COI narrowly in assessing his claim of fear of being detained in the military detention facilities for his affiliation with MASSOB where all his human rights will be deprived.

9.  The Judge considered the application on paper and on 2 October 2019, gave his decision refusing to grant leave to the applicant to apply for judicial review.  After summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [13] – [19] for his refusal to grant leave:

“13. The applicant’s complaint in Ground (1) that the Board failed to consider his fear of persecution by the Nigerian authorities for his affiliation with the MASSOB group is clearly factually incorrect, as the Board did at the commencement of its decision clearly and properly identified in paragraph 5 all the risk and issues raised in the applicant’s claim including the said risk of harm from the Nigerian authorities:

“5. The Appellant has alleged that if refouled, he will be at risk of harm because of various reasons. For ease of analysis, the Board has made the list below:

(a) He is at risk of ‘Double Jeopardy’ if refouled, as he will face another prosecution in Nigeria even though he was sentenced in Hong Kong to prison for drug trafficking;

(b) He is at risk of harm if refouled, as he is now a homosexual;

(c) He will be at risk due to the extremely poor prison conditions in Nigeria;

(d) He will be at risk of religious persecution from Boko Haram as he is now a Christian;

(e) He will be at risk of harm from the Nigerian authorities who perceive him to be a donor or supporter of Massob (the organization fighting for an independent Biafra);

(f) Sending him back to Nigeria will be unfair and harsh because he is at present studying for a university degree with the Open U of Hong Kong; and

(g)   Sending him back to Nigeria will be unfair and harsh because he is suffering from a back injury, which may require surgery.”

14.  For such risk of harm from the Nigerian authorities, the Board proceeded to conduct its analysis and assessment under the topic “The risk of harm from the authorities who perceive him to be a donor and/or supporter of Massob”, in which the adjudicator stated her analysis and findings as follows:

“34. From reliable Country of Origin Information (‘COI’), the Board is aware that Massob was founded in 1999, and stands for the Movement for the Actualization of the Sovereign State of Biafra (hence MASSOB); and that Massob seeks to create an independent state of Biadra in the Igbo-dominated south-eastern region of Nigeria. Massob has claimed that successive governments have continued to oppress and discriminate against the Igbo people since the failed Biafran independence was (1967 – 1970). Headed by its founder Chief Ralph Uwazuruike, Massob staged a non-violent campaign leading to a United Nations supervised referendum for the creation of a separate Igbo state in Nigeria. Massob has continually alleged that there have been mass arrests and killings of its members by government forces. It was reported on 14 September 2015 in the Nigerian media that 43 persons suspected to be members of Massob were arrested by the State Joint Security Operations and paraded at the Headquarters of Anambra State Police Command in Awka. It was also reported that on 4 June 2017, the 82^nd Division of the Nigerian Army escaped a trap set by the Biafra groups and Massob.

35. It was noted that in the Non-refoulement Claim Form, in answer to the question ‘What is your ethnic group, tribe or race?’ the Appellant’s answer was ‘Igbo’; subsequent to the Director’s Notice of Decision dated 17 February 2017, in his Notice of Appeal he claimed that he was ‘ethnic Biafran’. The Appellant claims to be studying for a university degree with the Open University of Hong Kong. The Appellant must have been able to comprehend a simple question of ethnicity. The Appellant could not have made a mistake by claiming that he was ethnic Igbo on one occasion; and claiming that he was ethnic Belfran on another occasion. This inconsistency relates to ethnicity, and is not in relation to a minor or peripheral matter especially as he claimed to fear harm from Nigerian state security agents for being a Massob donor or supporter. Furthermore, a university student would know that the Igbos wanted to carve out an area to become a new country called Biafra, therefore Biafra relates to nationality, not ethnicity.

36. It was also noted that the Appellant had also failed or neglected to inform the Immigration Officer: (i) his name was on the Massob Register; and (ii) he had been inducted as a member of Massob since 2007; and (iii) his father had been kidnapped by Massob. That information only surfaced in evidence placed before the Board. The Appellant must have realized that even if it is accepted that: (i) members and/or supporters of Massob are persons of interest to the Nigerian government; and (ii) the Appellant’s brother Kelechi was arrested in a Massob protest march; and (iii) the police found documentary evidence that the Appellant had sent money to Kelechi; it would be regarded as pure speculation that the Nigerian police would have concluded that the Appellant is a donor and/or supporter of Massob. The matters relating to the Massob inserted subsequent to the Notice of Decision have added force and substance to this part of his claim.

37. The Board rejects the newly added assertions.  The Board finds that the Appellant has not shown (absent the newly inserted assertions) that there is a genuine and substantial risk of harm that the police will perceive him to be a donor and/or supporter of Massob simply on the basis of one telegraphic transfer of money from one brother to another.”  

15.  Having had the benefit of hearing the applicant’s testimony and answers to questions put to him at the hearing and on the basis of all the evidence before the Board, the adjudicator was in my judgment certainly entitled to make such findings as she did that the applicant’s asserted risk that the Nigerian authorities would perceive him to be a donor or supporter of MASSOB as purely speculative on his part, and that he failed to show that such risk as genuine or substantial.  In the premises and in the absence of any error being clearly or properly identified by him, I do not find any basis or merit in this complaint of the applicant.  

16.  As for his complaint under Ground (2) over the Board’s improper reliance on COI as to the conditions in Nigerian prisons, as already explained in paragraphs 41 – 44 of the decision, the adjudicator did accept that the prison conditions were generally poor but not found to be systemically inhuman or life-threatening, and did not meet the high threshold of Article 3 ECHR (BOR 3), and in assessing this risk the Board did proceed to consider the individual factors in the applicant’s case including the EU COI referred to by the applicant,but as rightly pointed out by the adjudicator, the onus is on the applicant to show that he will be detained and will experience conditions that will be in breach of BOR 3.  In the absence of other COI to the contrary, and with rigorous examination and anxious scrutiny, I do not find any error in the Board’s findings or evaluation of this risk, and I do not see how this ground can reasonably be argued by the applicant.

17.  As for the applicant’s complaint under Ground (3) that the Board failed to consider the relevant COI as to the risk of him being held in military detention facility due to his association with MASSOB where he would be deprived of all basic rights and for indeterminate period, this is a new ground or argument never raised either before the Director or the Board and for which leave has not been sought from the Court, and in the absence of any particulars or evidence from the applicant or from COI that this will indeed happen if he is to be prosecuted by the Nigerian authorities, of which the Board as noted above already found as speculative and rejected in its decision in which the applicant failed to show any error of law or procedural unfairness or irrationality, I again do not see how this ground can reasonably be argued by the applicant in his intended application. 

18.  As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in the decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524. 

19.  In the present case the applicant has failed to show any error of law or procedural unfairness in the process before the Board or in its decision, and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in them either, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.”

10.  The applicant did not lodge any appeal in respect of the Decision within the 14-day time limit for appealing (which expired on 16 October 2019).  By the summons filed on 24 December 2019, he sought an extension of time to appeal against the Decision.  In his supporting affirmation, he explained that as a litigant in person, he never received the Decision through the mail and was not aware of it until he was informed by the Immigration officer when he reported his recognizance.

11.  The summons was heard before the Judge on 11 June 2020 and by the Leave Decision, the summons was dismissed.  The applicant had delayed in taking out the summons for 2 months and 8 days and the delay was substantial.  The Judge was not satisfied that the applicant had provided any good reason for his delay as ignorance of the rules was not a reason for non-compliance of the rules.  Further, the court record showed that the decision was sent on 2 October 2019 to the applicant at his last reported address which he confirmed at the hearing of his summons and it was not returned through undelivered mail. 

12.  More importantly, the applicant did not either in his summons or affirmation provide any draft or proposed grounds of appeal, or any particulars of any error on the Decision, or why it might be argued that the Decision was unfair or unreasonable.  He merely complained that he was not allowed to clarify his case and the situation of his country and that the Decision relied heavily on COI provided by the Immigration Department.  The Judge found the said complaints were general and bare assertions without any particulars or specifics or elaborations.  The Judge found no prospect of success in the applicant’s intended appeal and therefore refused his application for an extension of time to appeal, and dismissed his summons.

The Renew Application

13.  By the summons dated 11 August 2020, the applicant renewed the matter before us.  He did not provide any draft or proposed grounds of appeal in his summons nor supporting affidavit save for saying that he wanted to challenge the Decision. 

14.  In the applicant’s 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, and other decisions on Wednesbury unreasonableness.  He submitted that “high standards of fairness” applied to the determination of a non-refoulement claim, and the Board had acted in a procedurally unfair manner without properly assessing his credibility.  The written submissions further referred to section 37ZT of the Immigration Ordinance (Cap. 115) and contended that in dealing with late filing of notice of appeal, the Board may only take account of the reasons for delay stated in the application and accompanying evidence, and other relevant matters of fact within the Board’s knowledge.  However, he did not explain or elaborate how the legal authorities and provisions would apply and assist his case.

15.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap. 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  An applicant who fails to do so cannot appeal unless an extension of time to appeal is granted. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (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.

16.  Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court should still examine if he has merit in the intended appeal, see: Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346. 

17.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this application, the salient principles are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A). 

Discussion

18.  We agree with the Judge that the applicant’s delay of 2 months and 8 days was substantial and ignorance of law is not an excuse for his failure to appeal the Decision within the time limit and that the applicant failed to provide any good reason to explain for the delay.  Thus, a higher threshold on the merit is called for before extension of time would be granted.

19.  Here, the applicant failed to provide any grounds for his intended appeal or pinpoint any error of law or procedural unfairness or irregularities for us to reverse the Decision.  His application is therefore bound to fail.

20.  We have reviewed the Board’s decision and note that the Board, after considering the totality of the applicant’s evidence, found that he had acted in bad faith in the sur place claim of homosexuality for the purpose of his non-refoulement claim ([30] of the Board’s decision).  Further the Board did not find that there is a genuine and substantial risk of harm that the Nigerian authority/police would perceive him to be a supporter of MASSOB simply based on just one telegraphic transfer of money to his brother who was arrested in a MASSOB protest march ([37] of the Board’s decision).  It is within the province of the Board to reach its findings and conclusion which in our view, is eminently reasonable and justified.

21.  We are also satisfied that the Judge had reviewed the Board’s decision carefully and we endorse the Judge’s findings that there is no prospect of success in the applicant’s intended application for judicial review.

22.  For these reasons, we do not see any prospect of success in the intended appeal.  It would be futile to extend the time for a hopeless appeal.  The summons dated 11 August 2020 is dismissed accordingly.

[1] This refers to the risk of violation of the right of life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5] The correct citation should be ST v Betty Kwan.