RE OTI GOZEC

CAMP 28/2022

[2022] HKCA 379

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 28 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 1317 OF 2018)

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JUDGMENT

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 4 May 2021[1] refusing his application for leave to apply for judicial review.

2.  The applicant has filed a supporting affidavit, and also lodged a written submission to support his application.  

3.  Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing.  Having considered the papers filed in this application and the applicant’s written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant is a national of Nigeria aged 62.  He arrived in Hong Kong on 18 May 2015 and was given permission to remain as a visitor for 14 days.  He overstayed and was arrested by the police on 9 June 2015.  He later raised a non-refoulement claim based on his fear of being harmed or killed by members of Boko Haram because he had reported an attack planned by them, which resulted in their arrests and the killing of one of them by the police.  The details of the applicant’s claim were set out in the decision of the Director at [6].  We will not repeat them.     

5.  By his decision dated 20 June 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk^[5] grounds.   

6.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board.  A hearing was held on 7 June 2018 during which the applicant gave evidence and answered questions put by the Board.  By its decision dated 3 July 2018, the Board dismissed the appeal.  The Board found the applicant’s claim unreliable having regard to the inconsistencies between his evidence and the account he gave to the Director as well as the internal inconsistencies in his evidence.  The Board did not accept he was threatened with harm by Boko Haram members or ill-treated by anyone in Nigeria, or would face any harm or ill-treatment upon his return to Nigeria.  The Board further considered that any risk of harm would be reduced or negated by the availability of state protection and internal relocation options, and concluded that the claim failed on all applicable grounds.

7.  On 9 July 2018, the applicant filed a Form 86 together with an affidavit to apply for leave to judicially review the Board’s decision.  Other than stating that he feared harm one returning to his home country and that the Board did not properly look into his case, the applicant had not put forward any specific grounds for seeking relief. 

8.  The Judge considered the application on paper and refused to give leave to apply for judicial review for the reasons set out in [9] to [13] of the Form CALL-1 dated 4 May 2021.  In summary, the Judge found there was no reasonably arguable basis to challenge the Board’s Decision in the absence of any error of law, irrationality or procedural unfairness being clearly or properly identified by the applicant. The Judge also had regard to the fact that both the Director and the Board found the applicant’s risk of harm was a localised one and that internal relocation options are reasonably available to him.  Having scrutinised the decisions of the Director and the Board, the Judge also did not find any basis for the court to interfere and concluded that the intended judicial review had no reasonable prospect of success.   

9.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made.  The time for the applicant to appeal the Judge’s decision expired on 18 May 2021. 

10.  By a summons filed on 17 June 2021, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge listed the application for an oral hearing on 20 October 2021, but the applicant was absent.  By his decision handed down on 3 November 2021[6], the Judge refused the application. 

11.  On 20 January 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of his application for leave to apply for judicial review.

12.  In considering whether to extend time for appealing against the refusal of 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. 

13.  The applicant was one month late, which is not an insignificant delay.  He stated in the present summons and supporting affidavit that he did not receive the letter from the Court and had missed the hearing.  We believe the applicant was referring to the hearing on 20 October 2021, which was for the application to extend the time for appealing the Judge’s decision dated 4 May 2021.  There is, however, no explanation for the delay in appealing the decision of 4 May 2021, whether in the present application or in the summons and affidavit filed below on 17 June 2021.  As the Judge pointed out in [5] of his decision dated 3 November 2021, the Form CALL-1 and the Court order were sent to the address stated in the Form 86 and had not been returned by the Post Office.  Like the Judge, we are not satisfied that the applicant had satisfactorily explained his delay.  Nevertheless, the most important consideration is the merits of the applicant’s intended appeal, to which we now turn.    

14.  In assessing the merits of the intended appeal, we 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 judge’s decision, 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.

16.  The applicant did not provide any ground in support of his intended appeal in either the summons or the affidavit.

17.  In his written submission, the applicant set out his personal and family background, and made the following points:

(1)  The current situation in his country is chaotic.  Apart from Boko Haram, there are also the Islamic States West African Province, Fulani Herdsmen and other unknown gunmen and kidnappers terrorising the country.  The war between the Nigerian government and the terrorists is at its apex.  It is unsafe for him to return.

(2)  There are extra-judicial killings of the Igbos tribe, to which he belongs, because they are predominantly Christians.  The Muslims who now rule and control the country are forcing the Christians to convert to Muslims.  Yobe State, where he came from, and Potiskum, which was his base, are now a war zone.  There were suicidal bombing targeting churches, markets and so on.

(3)  The Director assessed his case based on information posted on social media by the Muslim journalists whereas Christian journalists were banned from sharing information.  The media is not able to cover the bad news happening every day due to intimidation.   

(4)  His right under Article 2 of the Hong Kong Bill of Right Ordinance should be protected.       

18.  For the following reasons, we are of the view that the matters put forward by the applicant have no merits:

(1)  The reasons and basis for his fear of harm advanced in the written submission differ significantly from those stated in the claim made to the Director and in the appeal before the Board.  They are new assertions that had not been considered by the Director or the Board.  They had also not been raised in the Form 86 or the accompanying affidavit.  As a matter of procedure, it is not open to the applicant to raise new grounds on appeal, especially when they are fact sensitive. 

(2)  More importantly, assessment of credibility, country condition and risks of harm is a matter for the Director and the Board, who are the primary decision makers.  It is not the role of the Court in a judicial review to assess the country condition, the credibility of the claim or the risk of harm that an applicant faces.  Unless it can be demonstrated that the decision makers had committed errors of law, acted irrationally or there was procedural irregularity in the decision-making process, the Court could not judicially review their decisions.

(3)  As the applicant had appealed to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review. 

(4)  The Board had, for the reasons it gave, rejected the primary facts underlying the applicant’s claim as being not credible and unreliable.  Both before the Judge and in this application, the applicant had not pointed to any error in the Board’s assessment and finding in this regard.

19.  We have separately considered the Board’s decision.  We do not discern any legal errors, irrationality or procedural irregularities.  We agree with the Judge that the intended judicial review has no prospect of success, and the Judge was correct in refusing to give leave to apply for judicial review.       

20.  In the circumstances, the applicant’s intended appeal against the Judge’s refusal of the application for leave to apply for judicial review has no prospect of success.  This being the case, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 20 January 2022.