RE NZEWI JUDE UGOCHUKWU

CAMP 218/2022, [2023] HKCA 533

On Appeal From [2021] HKCFI 1197

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 218 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 1414 OF 2018)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court)  :

I.  Renewed application for extension of time to appeal

1.  On 18 July 2018, the applicant issued his application for leave for judicial review by Form 86.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (the ‘Board’)  dated 1 June 2018 which dismissed his appeal against the decision of the Director of Immigration (the ‘Director’)  dated 27 March 2017 rejecting his claim for non-refoulement protection.

2.  In his decision of 30 April 2021 (the ‘Decision’), Deputy High Court Judge Bruno Chan refused to grant leave to the applicant for judicial review.

3.  Under Order 53, rule 3(4)  of the Rules of the High Court, Cap. 4A, the applicant had 14 days to appeal against the Decision.  Being out of time, the applicant took out an application on 7 October 2021 before the Judge requesting an extension of time to appeal.  The Judge on 25 May 2022 rejected the applicant’s application.

4.  Under Order 59, rule 14(3)  of the Rules of the High Court, the applicant may, within seven days after the Judge’s refusal, make a renewed application to this Court for extension of time to appeal.  On 28 June 2022 (late for almost one month), the applicant filed the present summons for leave to appeal out of time against the Decision dated 25 May 2022.  We will treat the application as a further application to this Court for extension of time to appeal.

5.  Under Order 59, rule 14A(1)  of the Rules of the High Court, this Court may determine an interlocutory application without an oral hearing.  Having considered the applicant’s summons, affirmation and written submissions, we are of the view that it is appropriate to determine the present application on paper without a hearing.

II.  Background

6.  The applicant is a national of Nigeria.  He entered Hong Kong on 20 September 2012 with permission to remain as a visitor.  He was subsequently arrested for overstaying on 15 June 2013.  He then raised a non - - refoulement claim on the basis that if he returned to Nigeria he would be harmed or killed by local supporters of the rival political party All Peoples Congress (‘APC’)  and/or by a host of terrorist groups or militants operating in Nigeria.

7.  The details of the applicant’s claim have been summarised by the Judge at [1] to [5] of the Decision.

III.  The Director’s Decision

8.  The Director’s Decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc)  of the Bill of Rights(‘BOR 3’), Article 2 (right to life)  of the Bill of Rights (‘BOR 2’), as well as his other statutory and convention rights against torture and persecution (the ‘Director’s Decision’).

IV.  The Board’s Decision

9.  After a hearing held on 12 April 2018, the Board dismissed the applicant’s appeal.  The Board found the applicant’s claim vague and unsubstantiated.  In any event, in the absence of any evidence of state or official involvement, state protection would be available to him upon his return to Nigeria.  The Board also confirmed the Director’s conclusion that the applicant could safely and reasonably relocate to a different part of Nigeria.  The Board therefore found that the applicant’s claim failed on all applicable grounds.

V.  Decision of the Judge

10.  The applicant did not put forward any ground for seeking relief in his Form 86.  In his affirmation, he merely repeated his claim that he would be killed if returned to Nigeria without putting forward any proper ground for his intended challenge.

11.  The applicant did not request an oral hearing before the Judge.  The Judge decided that it was appropriate to determine the application on paper without an oral hearing.

12.  Even though the applicant did not identify any error of law, irrationality or procedural unfairness in the proceedings before the Board or its decision, the Judge considered the Director’s Decision and the Board’s Decision with rigorous examination and anxious scrutiny.  The Judge did not find any error of law or procedural unfairness, nor any failure to apply high standards of fairness in their consideration and assessment of the applicant’s claim.  In the premises, the Judge was not satisfied that there was any prospect of success in the applicant’s intended application for judicial review and accordingly refused the leave application.

13.  In his decision of 25 May 2022, the Judge considered the delay of almost five months to be very substantial or inordinate.  The Judge was not satisfied that the applicant had provided a good reason for the serious delay.  More importantly, the Judge found there was no prospect of success for the intended appeal.  The Judge therefore refused the applicant’s application for extension of time to appeal.

VI.  Legal principles

14.  In considering whether to extend time for appeal, the Court will have regard to:

1)  Length of the delay;

2)  Reasons for the delay;

3)  Prospect of the intended appeal; and

4)  Prejudice to the putative respondent if extension of time was granted.

VII.  Analysis

1)  Length of delay and reasons for the delay

15.  The applicant was late for almost five months when he filed his application for extension of time to appeal before the Judge.  His renewed application to this Court was again late by almost one month.  The applicant only raised a bare assertion in his affirmation that he did not receive the Decision in time.  The delay is significant and the explanation is unsatisfactory.  Nevertheless, we shall focus on the merits of this case.

2)  Prospect of the intended appeal

16.  The applicant did not provide any proposed grounds of appeal.  In his summons and written submissions, he complained that the Judge did not consider his reasons for not filing the appeal on time.  This is plainly incorrect.  As mentioned, the Judge had considered the applicant’s purported explanations but did not find them satisfactory. 

17.  More importantly, we agree with the Judge that there is no prospect of success in the intended appeal.  The Court of Appeal would focus on the decision of the judge and would only consider reversing that decision if an applicant 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.  An appeal 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.  General and bare assertions without any specific particulars are not proper grounds of appeal.

18.  Furthermore, the Judge had considered all the relevant matters including the merits of the applicant’s case when he refused to grant leave for judicial review.

19.  In the present case, the applicant has not identified any proper grounds of appeal or errors committed by the Judge.  The intended appeal is completely devoid of merits.

VIII.  Disposition

20.  As the intended appeal is unarguable, it would be futile to give an extension of time.  Accordingly, we dismiss the applicant’s summons dated 28 June 2022.