RE AMADI COLLINS CHBUIKE

CAMP 223/2020

[2021] HKCA 349

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 223 OF 2020

(ON AN INTENDED APPEAL FROM HCAL 824/2017)

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J U D G M E N T

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

1.  The application to this Court for extension of time to appeal was brought by a summons of 27 November 2020. The intended appeal was directed against the refusal of Campbell-Moffat J to grant leave to the Applicant to bring a judicial review on 15 May 2020 against the decisions of the Torture Claim Appeal Board (“TCAB”) and the Director of Immigration. By those decisions, the Applicant’s non-refoulement claims were rejected.

2.  After the refusal of leave to bring judicial review, he had previously taken out a summons in the Court of First Instance on 4 August 2020.  Unfortunately, the summons only set out some grounds for challenging the decision of the TCAB.  The supporting affidavit of 4 August 2020 shed no further light on the relief he sought.

3.  That summons was dismissed by Campbell-Moffat J on 18 September 2020.

4.  Even assuming that he mistakenly believed he had sought extension of time to appeal by his summons of 4 August 2020, he was out of time in bringing the application of extension of time to appeal in this court.  Under Order 59 Rule 14(3), he has 7 days from the decision of the Court of First Instance to renew his application for extension of time.  He has failed to do so within 7 days from 18 September 2020.

5.  As a matter of fact, he was out of time to bring an appeal when he took out his summons of 4 August 2020.  The appeal period of 14 days under Order 53 Rule 3(4) expired on 29 May 2020.

6.  In light of the fact that he had been back to the Court of First Instance by a summons of 4 August 2020 (though without clearly identifying that he was seeking extension of time to appeal), we are prepared to deal with his application for extension of time in this Court on this occasion.

7.  Pursuant to Order 53, Rule 3(4) of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  An applicant who fails to do so cannot appeal unless extension of time to appeal is granted.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (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.

8.  Even if the court finds an applicant’s explanation for delay acceptable, the court should still examine if there is any merit in the intended appeal, see: Re MK HCMP 2609/2016, 10 January 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226.  The crucial question on the merit of the intended appeal is whether the applicant can show that there is a reasonable prospect of success in persuading this Court to reverse the decision of the judge.

9.  On the other hand, in cases where the court does not accept that the applicant’s explanation for delay, the court would also examine if there is any merit in the intended appeal.  However, in cases where the delay is substantial and not excusable, the court will grant extension only if the intended appeal has a real prospect of success: Re Ansar Muhammad [2018] HKCA 227; Re Adumekwe Rowland Ejike [2019] HKCA 702; Re MA [2019] HKCA 1020; Re Muhammad Shehbaz [2020] HKCA 256.

10.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this application, the salient principles are as follows:

(a)  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.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are 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.

(b)  An appeal against the refusal of leave by a judge in the Court of First Instance 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.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant 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.

(c)  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 judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

11.  We have addressed the length of the delay.  He had not proffered any explanation for his delay in bringing the appeal in his summons or affirmation filed on 27 November 2020.  Nor did he do so in his submissions of 8 February 2021.

12.  In the circumstances, extension of time to appeal would only be granted if the Applicant has a real prospect of success in his intended appeal.  

13.  Having considered the papers lodged by the Applicant, including his submissions of 8 February 2021, we cannot see any proper grounds of appeal.  Campbell-Moffat J had explained in the Form CALL-1 of 15 May 2020 the reasons for holding that his intended application for judicial review had no reasonably arguable basis.  At [10] to [12] of the Form CALL-1, it is said,

“ Grounds of review

10. There were no grounds of review. By his letter dated 31 October 2017, the applicant seeks a re-hearing of his appeal. He has not complained of any procedural irregularity, unfairness or unreasonableness. The applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11. Despite the fact that the applicant did not submit any grounds of review, I have considered the papers carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of his determination, which was open to him on the facts and eminently reasonable.

12.  In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

14.  These reasons are in accordance with the legal principles set out above.  We cannot detect any error of law or principle in the decision to refuse leave.

15.  In the documents lodged by the Applicant in this application (the summons, the affirmation and the submissions), he did not engage with the reasons given by the judge.  There is no proper ground of appeal placed before us.  He only depicted how Nigeria is not safe and reiterated his fear that he would be persecuted by reason of his status as co-ordinator of Indigenous People of Biafra (IPOB) in Hong Kong.

16.  Having read the decision of the TCAB of 23 June 2017, we are satisfied that his claims had been properly considered by the TCAB.  The background and relevant facts to his claims were set out by the TCAB in its decision.  At paragraphs 57 to 76 of the TCAB’s decision, it clearly and cogently explained the reasons for rejecting his non-refoulement claims based on the land dispute with his uncle and his involvement with IPOB activities. 

17.  The Applicant failed to put forward proper grounds for seeking judicial review.  As stated above, judicial review is not a further avenue of appeal and the Court in the exercise of its jurisdiction in judicial review is not to weigh the evidence afresh. The Court only intervenes if there is public law ground for doing so. 

18.  In the present case, the Applicant fails to advance any proper public law ground for the Court to intervene.  The judge was correct in refusing to grant leave.

19.  There is no prospect of success in the intended appeal (not to mention real prospect of success).

20.  For these reasons, the summons of 27 November 2020 is dismissed.