NNOLI CHUKWUDI KENNETH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 263 /2019

[2020] HKCA 277

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 263 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 1050 OF 2017)

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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 12 April 2019, Campbell-Moffat J refused the applicant’s application for leave to seek judicial review of the decisions of the Director of Immigration (“the Director”) concerning his non‑refoulement protection claim^[1].

2.  On 4 September 2019, the judge refused to grant leave to the applicant to appeal against her decision out of time as she considered that it would not be in the interest of justice to grant an extension of time in all the circumstances of this case^[2].

3.  The applicant took out a renewed application for leave to appeal against the judge’s decision out of time to the Court of Appeal on 21 October 2019.

4.  The applicant is a national of Nigeria of 40 years old.  He entered Hong Kong lawfully on 24 February 2011 and overstayed.  He was arrested by the police on 22 September 2015.  He submitted a non‑refoulement claim by written representations on 15 and 29 October 2015.  He claimed that he would be harmed or killed by his creditor if he were to return to Nigeria. 

The Director’s decision

5.  By a Notice of Decision dated 20 May 2016 and a Notice of Further Decision dated 10 March 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds.

The Board’s decision

6.  The applicant appealed against the Director’s decisions to the Board. The Board conducted a hearing on 13 June 2017.  The Board held that the applicant is lacking in credibility.  The Board also considered that the case is about a private loan which does not involve any harm or threat of harm instigated by anyone in the capacity of the state government.  There is no evidence to show that the applicant has suffered “severe injury or serious harm” which would place him within the prescribed criteria and he is safe to live in Nigeria, at least in places other than in his home locality.   As the applicant failed to establish his non‑refoulement case under all applicable grounds, the Board dismissed the appeal on 10 November 2017.

The intended judicial review

7.  The applicant filed a Form 86 and an affirmation on 11 December 2017 to seek leave to apply for judicial review against the decisions of the Director.

The judge’s decision

8.  The judge noted that the applicant did not state any grounds for his intended judicial review.  As the decisions of the Director are not susceptible to judicial review once an appeal to the Board has been pursued by the applicant and dealt with, the judge considered the application as an application for leave to apply for judicial review of the Board’s decision.

9.  The judge found that the Board did not set out the correct test when it found that the applicant had not suffered “severe injury or serious harm” in respect of persecution risk^[3], in that persecution risk is not “virtually the same” as BOR 3 risk^[4] as stated by the Board.  However, the judge considered that the facts of the applicant’s case have not established the basis for a claim under the head of persecution risk and the error of the Board in this regard does not make any difference to the outcome of his claim in the Court of First Instance or in the tribunal below. 

10.  The judge also reviewed the papers and assessed that there is no relevant error of law or procedure applicable to the facts of this case.  There is also no evidence of procedural unfairness or failure to adhere to a high standard of fairness throughout.  

11.  The leave application was refused on 12 April 2019 as the judge considered that the applicant’s intended application for judicial review does not have realistic prospect of success.

The grounds of appeal

12.  The grounds of appeal stated in the applicant’s written submissions may be summarized as follows^[5]:

(1)  Both the Director and the Board failed to attain a high standard of fairness in arriving at their decisions as there was no proper investigation. They did not understand the materials or country of origin information.

(2)  His life in Nigeria is in danger because the law in Nigeria gives the creditor more power than the debtor.  His creditor is connected with the government and has tortured many debtors. The police cannot protect him, there is no rule of law and corruption there is the worst apart from India.

(3)  He borrowed a lot of money from his creditor and did not have money to repay.  His creditor is a member of a political party which is now in power so the creditor can use his position to victimize him. 

13.  In his affirmation filed on 21 October 2019, the applicant stated that he did not receive the order at his address and his residence is in a public building where they collect mails in an open box.  He also stated that he was searching for an interpreter.

Analysis

14.  In considering whether to extend time for appeal against a decision refusing leave to apply for judicial review, the court will take into account these factors: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

15.  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 12 April 2019.  The applicant took out a summons in the court below on 27 August 2019.  He was late by more than four months.  The delay is substantial.

16.  The applicant explained that he did not receive the order at his address and he was searching for an interpreter.

17.  The decision of the judge refusing the original leave application was sent to the applicant’s address as stated in his Form 86 by registered post on 12 April 2019 but the mail was unclaimed and returned.  It is the duty of a litigant 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). 

18.  The applicant’s delay was inexcusable.  In these circumstances, he must show a real prospect of success on the merits (Secretary for Justice v. Hong Kong & Yaumatei Ferry Co Ltd [2001] 1 HKC 125). 

19.  In assessing the merit 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.

20.  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. Assessment of evidence and Country of Origin Information (“COI”) materials and risk of harm, state protection and viability of internal relocation is 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.

21.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

22.  The applicant’s complaints against the Director and the Board have not been raised in the original leave application and he has not sought leave to put forward these new arguments.  Therefore, such new arguments will not be entertained by the Court of Appeal.  

23.  In any event, his contentions are just bare assertions.  The Board found that the applicant’s case concerns a private loan and that the applicant has not suffered severe injury or serious harm which would attain the prescribed requirement for torture risk^[6], BOR 2 risk^[7] or BOR 3 risk.  The applicant failed to provide viable evidence to refute the Board’s findings.  He also failed to show that the judge had made any errors of law or had failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  The judge has reviewed the decision of the Board carefully and explained her reasons for refusing leave in her decision dated 12 April 2019.  Her decision is well founded.

24.  For the above reasons, the applicant does not have any prospect of success in the intended appeal. We therefore dismiss the summons filed on 21 October 2019.