RE ROBERT ADJAGBA

CAMP 83/2019

[2019] HKCA 1437

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 83 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 872 OF 2017)

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J U D G M E N T

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

Introduction

1.  By a decision as set out in Form CALL-1 dated 7 September 2018 (“the Deputy Judge’s Decision”) [2018] HKCFI 1982, Deputy High Court Judge Bruno Chan (“the Deputy Judge”) refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) dated 1 September 2017 dismissing his appeal regarding his non‑refoulement claim (“the Board’s Decision) and the decisions of the Director of Immigration (“the Director”) dated 23 June 2016 (“the Director’s First Decision”) and 9 June 2017 (“the Director’s Second Decision”).

2.  The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

3.  The applicant issued a summons on 22 October 2018 before the Deputy Judge seeking leave to appeal the Deputy Judge’s Decision out of time.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the 14‑day period for him to lodge such appeal expired on 21 September 2018.  Thus, the application was about one month out of time.  On 23 January 2019, the Deputy Judge refused his application to appeal out of time.

4.  On 13 February 2019, the applicant again sought leave before the Deputy Judge.  On 7 May 2019, the Deputy Judge again refused his application to appeal out of time.

5.  The applicant now renews the application for extension of time to this Court by way of a summons dated 9 May 2019 (“the Summons”).  Again, he is late by more than three months in filing his renewed application before this Court[1].

6.  Pursuant to the directions of the Registrar of Civil Appeals given on 10 May 2019, the applicant lodged his written submissions on 29 May 2019.  Having considered the applicant’s written submissions, we take the view that the renewed application can be disposed of on paper without an oral hearing pursuant to Order 59, rule 2A(5)(a) of the Rules of the High Court (Cap 4A).  This is our judgment.

Background

7.  The applicant is a national of Nigeria.  He first came to Hong Kong on 18 June 2015 as a visitor and was permitted to stay until 2 July 2015.  He overstayed and was arrested by the police in Hong Kong on 22 June 2015.  He lodged a non-refoulement claim on 1 August 2015.

8.  The details of the applicant’s claim and his personal background were set out in paragraphs 5 - 6 of the Director’s First Decision, and paragraphs 12 - 13 of the Board’s Decision.

9.  Briefly stated, the applicant claimed that if he were to return to Nigeria or Benin, he would be harmed or killed by his customers in the clothing business.  The applicant and his brother Mr V started running the family clothing business in 1995.  In around March 2014, the applicant was arranged to go to Guangzhou to further grow the clothing business.  In April 2015, Mr V gave the applicant a sample from Beninese government officials to source ritual gowns for use in witchcraft.  However, he was cheated by a Ms T into paying the money but he did not receive the clothes.  As a result, the customers were hunting down Mr V and the applicant.  Mr V subsequently told the applicant that he already fled to Benin.  But in November 2015, Mr V told the applicant that the matters with the customers were solved but the applicant feared that it was a tactic to lure him to replace Mr V as a human sacrifice for the customers.

The Director’s Decisions and The Board’s Decision

10.  By the Director’s Decisions, the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk[2], the persecution risk[3], and the torture risk[4]. The Director’s Second Decision assessed the BOR 2 risk[5].

11.  The applicant appealed the Director’s Decisions to the Board.  After the hearings on 14 June 2017 and 30 August 2017, the Board dismissed the appeal.  The Board found that the applicant is a citizen of Nigeria by birth and a national of Benin (paragraphs 28 - 38 and 52 of the Board’s Decision).  It proceeded to consider all the applicable grounds in light of the situations in both Nigeria and Benin.  The Board found that the applicant had substantiated his BOR 3 risk if he were refouled to Benin (paragraphs 63 ‑ 65 of the Board’s Decision).  Yet, in the situation of Nigeria, the Board concluded that the harm was directed at him due to the private dispute without any evidence showing involvement of Nigerian government or public officials.  Thus, the applicant failed to establish that he would face real risk of harm if he were refouled to Nigeria (paragraphs 66 - 78 of the Board’s Decision).

The Deputy Judge’s Decision

12.  On 13 November 2017, the applicant filed his Form 86 for leave to apply for judicial review against the Board’s Decision.  The intended grounds of review were summarized by the Deputy Judge at paragraph 14 of the Deputy Judge’s Decision:

“14. On 13 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in it he put forward the following grounds for his intended challenge:

(1) that the adjudicator failed to apply the necessary rigor in the examination of the issues and made errors in the determination of facts that led to an unreasonable decision;

(2) that the adjudicator failed to have reasonable regard to COI as to the threats to life in Nigeria and in particularly to the applicant; and

(3) that the adjudicator failed to apply the necessary high standards of fairness in the consideration of the applicant’s claim and in the refusal to accept his account of the facts of his situation.”

13.  The Deputy Judge heard the applicant on 2 August 2018 and dismissed the applicant for reasons set out at paragraphs 15 - 22 of the Deputy Judge’s Decisions:

“15.  In support of his ground (1) the applicant referred to paragraphs 10, 12 and 28 – 38 of the Board’s decision to argue that the adjudicator had erred in finding that he was both of Nigerian and Beninese when he was born to Beninese parents and is therefore only of Benin nationality, and hence the adjudicator incorrectly interpreted and applied the evidence in failing to distinguish between residency and nationality and therefore erred in his decision.

16.  It seems clear to me from reading and examining carefully those paragraphs referred to by the applicant above that the adjudicator started off with his findings as to the applicant’s nationality and residency by first correctly identifying the issue in paragraph 28 as follows:

‘At the first hearing, I discussed with the Appellant at length his nationality. Consistent with his claims in the NCF, he told me he was born in Nigeria to Beninese parents. He said he is a dual citizen of both Benin and Nigeria. Benin by descent and Nigeria by place of birth. He obtained a Benin passport at the recommendation of Mr V. He never applied for a Nigerian passport, but believed he was entitled to one. He has a Nigerian ID card, but did not bring that document with him to Hong Kong. He lived all his life in Nigeria, other than some trips to Benin, prior to going to Guangzhou. He did all his schooling in Nigeria and he told me he was entitled to receive medical treatment.’

17.  The adjudicator then went on to examine the evidence and found that the applicant is indeed a citizen of Benin by descent, but accepted at the first hearing that the information as to whether he is a citizen of Nigeria was less clear, and he called for a second hearing to enable the applicant to obtain further information and to receive further evidence from the applicant and concluded with these findings as to the applicant’s status in Nigeria:

‘37. I am mindful the Appellant’s consistent evidence he has lived all of his life in Nigeria. It seems implausible he would be able to do so without some lawful status in Nigeria. At both hearings I told the Appellant I was considering the possibility he may have a real risk of harm from the customers in Benin, but perhaps not in Nigeria and therefore he could return to Nigeria. Even with my telling that to him, he maintained he is a citizen of Nigeria. I consider such a declaration against his better interests to strongly weigh in favour the Appellant is providing credible evidence he is a citizen of Nigeria. Although I have not sighted the document, I consider the Appellant having held a Nigerian ID card in the past also weighs in favour of his being a Nigerian citizen. Finally, I place weight too on the Appellant’s mother leaving the voice message to him in the Igbo language was weighing in favour of finding the Appellant is Igbo.

38.  Having regard to the country information set out above, I consider it more probable than not the Appellant is a citizen of Nigeria through Nigeria being his place of birth and one of his parents or grandparents being a Igbo, which is a community indigenous to Nigeria. After balancing all of the evidence, I find the Appellant is a citizen of Nigeria by birth.’

18.  It is therefore clear to me that the adjudicator had based his findings of the applicant being a citizen of Nigeria on both undisputed facts and the applicant’s own evidence, and I do not see any basis in the applicant’s complaints that there was any error in the adjudicator’s conclusion over this issue.

19.  As for the complaint under ground (2) of the adjudicator failing to have regard to COI as to the threats to life in Nigeria, the applicant did not provide any particulars or elaboration as to how they applied to his case, as it has been held by the Court of Appeal that the mere existence of a consistent pattern of gross, flagrant or mass violation of human rights in the home country per se does not constitute a sufficient ground for determining that a particular person will be in danger of being subjected to such risk upon his return: see Re RS CACV 206/2012, 20 August 2013. There is no basis to accept that upon his return to Nigeria the applicant would face any real and personal risk other than that identified by the Board but which the applicant was found to have failed to establish in Nigeria.

20.  As for his last ground of complaint of the adjudicator failing to apply high standards of fairness in the consideration of his claim by refusing to accept his account or evidence as to his business dealings with his supplier in China which led to the eventual failure to deliver the gowns to the Beninese customers, again from a careful examination of his decision I find the adjudicator in fact accepted the applicant’s account which led to the threats from those customers in Benin, and I do not see any relevancy of such complaint of the applicant has to the Board’s conclusion of his failure to establish his claim on all applicable grounds if he is refouled to Nigeria.

21.  In the premises 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 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.

22.  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 his leave application.”

Extension of time in the court below

14.  On 22 October 2018 and 13 February 2019 respectively, the applicant took out summons seeking leave to appeal against the Deputy Judge’s Decision out of time before the Deputy Judge.  On both occasions, the Deputy Judge refused to extend time for the applicant’s application.

15.  By the decision dated 23 January 2019 [2019] HKCFI 191, the Deputy Judge found that the applicant’s alleged health issue was unsubstantiated and lacked particulars. He refused to accept it as a good reason for delay.  In any event, the sole ground of appeal in relation to the latest development in Nigeria was never raised or argued before the Board.  The Deputy Judge found that this was not a ground which the Court of Appeal would entertain and in absence of any other errors identified in the Deputy Judge’s Decision, the application was dismissed for lack of reasonable prospect of success.

16.  By the decision dated 7 May 2019 [2019] HKCFI 821, the Deputy Judge again found that there was no reasonably arguable ground and refused his application to appeal out of time.

Discussion

17.  In the Summons, the applicant merely stated that he sought to apply for leave to appeal out of time against the Deputy Judge’s Decision.  In his written submissions, he repeated that he was sick and was unable to walk outside.  He could not obtain medical assistance because he had no money.  Apart from repeating his health issue, the applicant again did not set out any intended grounds of appeal.

18.  We agree with the Deputy Judge that the explanations provided by the applicant were without proof and lacked specifics.  Nevertheless, we will dismiss this application because there is no prospect of success in the intended appeal.

19.  As mentioned above, the applicant has failed to set out or identify any errors in the Deputy Judge’s Decision to support his intended appeal.  These are not viable grounds of appeal.  We agree with the Deputy Judge that the grounds set out in the affirmation in support of his application for leave to apply for judicial review were hopelessly without merit.

20.  In any event, after our review of the materials placed before the Deputy Judge, we agree with the Deputy Judge’s Decision that the Board had achieved the high standards of fairness required and was entitled to render those findings, conclusions and decisions.  We do not see any errors of law or procedures in the proceedings before the Board and the Deputy Judge was clearly right to refuse to grant leave to apply for judicial review.

21.  For the reasons set out above, the application is totally devoid of merits and the intended appeal is doomed to fail.  There is also no other reason in the interest of justice why the appeal should be heard.  The Summons is dismissed accordingly.

22.  We further make an order pursuant to Order 59, rule 2A(8) of the Rules of the High Court, that no party may request this determination be reconsidered at an oral hearing inter partes.