RE ILEAGU JOY EZINNE

CAMP 262/2022

[2023] HKCA 286

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 262 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 850/2018)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an application for extension of time to appeal against the decision of DHCJ Bruno Chan (“the Judge”) dated 23 April 2021 refusing to grant leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 19 April 2018 (“the Board’s Decision”), dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 14 December 2016 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.  The applicant is a national of Nigeria. She entered Hong Kong on 2 October 2008 as a visitor, but she overstayed and was arrested by the police on 11 December 2012.  On 2 June 2013, she lodged a non-refoulement claim.

3.  The applicant’s claim was based on a fear of being harmed or killed by her uncle and cousins due to a land dispute.  The details of the applicant’s claim have been summarised by the Judge at [1] to [4] of his decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 14 December 2016, the Director decided against the applicant’s claim.  The Director’s Decision covered the torture risk[2], the persecution risk[3], the BOR2 risk[4] and the BOR 3 risk[5].

5.  The applicant appealed to the Board.  After a hearing on 26 February 2018, the Board dismissed the applicant’s appeal by its Decision.  In dismissing her appeal, the Board had serious concerns regarding the applicant’s credibility, in particular, the fact that she claimed she was willing to return to Nigeria to get married despite the presence of the alleged risk of harm (see [34] & [61] of the Board’s Decision).

The Judge’s decision

6.  The applicant filed a Form 86 on 16 May 2018 seeking to judicially review the Board’s Decision, without setting out any grounds.

7.  In her supporting affidavit, the applicant exhibited a copy of the Board’s Decision, and claimed that the “immigration department” disregarded the dangers she may face should she be deported.

8.  After summarising the facts and background of the case and giving due consideration to the Board’s and the Director’s Decisions, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [9] to [14] of the CALL‑1 Form:

“9.  On 16 May 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in her Form, and in her supporting affidavit of the same date she merely stated that their decisions disregarded the danger and threats she would face should she be deported to her home country but without providing any particulars or elaboration how they did so or put forward any other proper ground for her intended challenge, nor did she request any oral hearing for her application.

10.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the 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 their 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.

11.  In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 52 – 65 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.  

12.  Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for her to relocate to other parts of Nigeria, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.  In the premises and having considered 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 either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

14.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.”

The present application for extension of time to appeal

9.  The applicant’s address as stated in her Form 86 was at No. 112 Tai Hong Village, Kam Tin.  On 29 May 2020, she informed the court that her update address was at No. 114 Tai Hong Tsuen, Kam Tin (“the Address”).  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Address on 23 April 2021, and were not returned undelivered.

10.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 23 April 2021.

11.  The applicant thereafter took out a summons in the Court of First Instance on 9 June 2021 seeking an extension of time to appeal, in which her address was stated to be the Address.  In her supporting affidavit filed on the same date, she claimed that she did not receive any letter from the court. 

12.  The applicant’s application to appeal out of time was dismissed by the Judge on 3 November 2021[6].

13.  By a summons filed on 20 July 2022 (more than 8 months after the dismissal of her application by the Judge), the applicant renewed her application for an extension of time to appeal before this court. In the summons and in her supporting affidavit, the applicant stated that she “did not get any letter” and that she disagreed with the Judge’s decisions.

14.  In her written submissions lodged on 3 August 2022, the applicant submitted that her life was “not safe” in Nigeria, and that the Judge wrongly failed to find any error on the part of the Board, despite her having pointed such error out. However, she did not provide any details as to what that error may have been.

Discussion

15.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

16.  As noted above, the Judge’s Decision was sent to the last known address of the applicant and was not returned undelivered.  The inference to be drawn is that she received the letter from the court, and that she had knowledge of the Judge’s decision within the period she was permitted to lodge the intended appeal.

17.  There is no explanation on the part of the applicant as to how and when she had come to learn of the Judge’s decision dated 23 April 2021.

18.  In the circumstances, we reject the applicant’s explanation for the delay in lodging her intended appeal.

19.  Further, the delay of over 8 months by the applicant in renewing her extension of time application before this court is very substantial and could of itself lead to the dismissal of her application before us.  Nonetheless, we have proceeded to consider the merits of the intended appeal.

20.  The applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

21.  The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

22.  It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.

23.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 20 July 2022 is accordingly dismissed.