OGBOZOR TOCHUKWU EUGENE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 542/2021

[2022] HKCA 607

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 542 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1436 OF 2018)

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J U D G M E N T

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

1.  On 18 August 2021, Deputy High Court Judge KW Lung refused the applicant’s application for extension of time to seek leave for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1].

2.  On 9 November 2021, DHCJ KW Lung dismissed the applicant’s application for extension of time to appeal against the said decision as there is no merit in the intended appeal[2].

3.  On 30 November 2021 the applicant filed the present summons with the Court of Appeal to appeal the Order made by DHCJ KW Lung dated 9 November 2021. In light of the decision in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8, we shall treat this as a renewed application for leave to appeal out of time against the decision of DHCJ KW Lung dated 18 August 2021.

4.  The applicant is a national of Nigeria. He is 40 years old. He lodged a non-refoulement claim on 4 September 2014 on the basis that he would be harmed or killed by people from the Niger Delta Group. By a Notice of Decision dated 27 June 2017, the Director of Immigration (“the Director”) rejected the applicant’s claims on all then applicable grounds including torture risk[3], BOR 3 risk[4], BOR 2 risk[5] and persecution risk[6].

5.  The applicant appealed against the Director’s decision and attended the hearing before the Board on 19 October 2017. He was unrepresented before the Board and gave evidence in support of his claims. The Board, however, did not accept his evidence and in particular, that he was targeted by the Niger Delta Group or the Niger Delta Militants, and found that he was not a witness of truth. The evidence of his claims was entirely rejected by the Board. In any event, the Board found there was no basis to think that the applicant would face any form of harm upon his return to Nigeria. Therefore, the Board dismissed the applicant’s claim on 2 February 2018.

The intended judicial review

6.  The applicant filed his Form 86 and an affirmation in support on 23 July 2018 for leave to apply for judicial review against the decision of the Board, after the expiry of the 3-month period required for applying for leave to bring judicial review. The applicant simply repeated his factual claims and maintained that they were true. As the applicant did not request an oral hearing, DHCJ KW Lung considered the application on paper.

The judge’s decision

7.  The judge considered the merits of the application notwithstanding the delay. He did not accept the applicant’s grounds in support of his application for judicial review as there are sufficient reasons for the findings of fact by the Board. The judge further held there is nothing to show that the Board had committed any error in the application of law, made irrational findings, or that there was procedural unfairness in coming to its conclusions. Hence, there is no basis to intervene by way of judicial review, citing Re Kartini [2019] HKCA 1022 at §13.

8.  Thus, the judge refused to grant extension of time and dismissed the application on 18 August 2021.

Grounds of appeal

9.  The applicant did not provide any grounds of appeal in his present summons or in his supporting affirmation. In the applicant’s written submissions, he complained that he was deprived of his fundamental right to an oral hearing and repeated his submissions in the court below.

Analysis and disposition

10.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the 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.

11.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The judge’s order was made on 18 August 2021. The applicant took out summons in the court below on 7 October 2021. He was late for over three weeks (not counting August which is the court’s summer vacation) and explained that he was late because he had not received the court’s judgment and order within time.

12.  According to the court records, the Court sent the decision by post on the day when the decision was handed on 18 August 2021 to the applicant’s last known address as stated in his Form 86. The mail has not been returned by the post office. The applicant has the duty to give the court an address to which correspondence or notice can come to his attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439 at §15). Under these circumstances, the applicant’s explanation for the delay is not acceptable.

13.  As the applicant’s delay is inexcusable, he must show a real prospect of success on merits: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

14.  In assessing the merits of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

15.  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 decision of the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

16.  A number of contentions made in the applicant’s submissions are bare assertions or repetition of previous allegations which have been dealt with by the judge. In respect of his complaint of no oral hearing, the judge is entitled to decide the matter on paper pursuant to the Order 32, rules 11 and 11A and Order 53 rule 3(3) of the Rules of the High Court. In any event, the applicant did not put forward any arguable grounds against the judge’s decision. He has not demonstrated that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

17.  For the above reasons, there is no prospect of success in the applicant’s intended appeal. We refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 18 August 2021 and dismiss the summons filed on 30 November 2021.