RE NDUKWE BARTHOLOMEW CHUKWUMA

CAMP 14/2020

[2020] HKCA 643

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 14 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 14 OF 2018)

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J U D G M E N T

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

1.  On 3 October 2019, DHCJ Bruno Chan (“the Judge”) refused to give the applicant leave to apply for judicial review proceedings concerning his non-refoulement claim (“the JR Decision”). Under Order 53 r.3(4) Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order. The deadline was therefore 17 October 2019.

2.  The applicant however did not lodge his appeal on that date, but sought to do so 4 days later.  As such, he was out of time and required an extension of time.  Accordingly he filed a summons in the Court of First Instance (“CFI”) for extension of time to appeal. That summons was dismissed by the Judge on 14 January 2020 (“the Extension Decision”).

3.  By summons filed in CAMP14/2020 in the Court of Appeal on 21 January 2020, the applicant applied to this court for an extension of time to appeal the JR Decision.

4.  Under Order 59 r. 14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  The applicant has filed written submissions on 19 May 2010 which we have read.  We are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

5.  The brief background is as follows.  The applicant is a national of Nigeria.  He inherited a piece of land in his home village after his father died in 1997.  In 2006, his paternal uncle, Gabriel, had a dispute with him about entry onto the land.  He claimed he received a death threat from Gabriel and suspected that another uncle was killed by Gabriel’s black magic.  The applicant then left his home village and stayed in Lagos.  The applicant claimed that after some time, some unknown individuals with weapons were looking for him.  He was concerned for his safety and left Nigeria for Hong Kong.  He claims he heard from his brother that Gabriel would kill him if he returned to Nigeria.  He overstayed in Hong Kong and surrendered himself to the Immigration Department more than 8 years later, on 31 March 2016.

6.  The applicant’s allegations in support of his claim have been set out in detail in the TCAB’s Decision and in gist in the Judge’s Decision.

7.  The TCAB found that the applicant was involved in a land dispute with Gabriel, but was not willing to attach any credence at all to the applicant’s assertion that Gabriel had killed the other uncle, or that the applicant was at risk of being killed, by witchcraft [30], or that the police could not protect him [31], or that he was not safe even in Lagos [32, 41].  The TCAB was not persuaded that he could not relocate to other parts of Nigeria [43] and noted the substantial delay in his application for non-refoulement after coming to Hong Kong [33].  The TCAB did not see any real chance that he would be harmed, or otherwise ill-treated by Gabriel [35] and the dispute was only between private individuals [37].  Consequently the TCAB rejected the applicant’s claims under the grounds of persecution risk, BOR 2 risk, BOR 3 risk and torture risk [46, 51, 54].

Application for leave to start judicial review

8.  On 3 January 2018, the applicant filed a Form 86 to apply for leave to judicially review the TCAB’s Decision.  He did not state any grounds of judicial review, and in his supporting affirmation, he made the following vague and unelaborated complaint:

“That in considering my case, the Hong Kong Immigration department and the TCAB failed amongst other things to acknowledge clear evidences of unavailability of an effective/unreliability of state protection in my home country.” (sic)

The JR Decision

9.  The applicant did not request an oral hearing, so his application was disposed of on paper. As mentioned earlier, the Judge refused leave for reasons set out in [11] - [15] of the Form CALL-1 ([2019] HKCFI 1079):

“11. He did not request for any oral hearing, nor did he ever elaborate what amongst other things that he claimed in the affirmation that the Director or the Board had erred or failed to consider in their decisions, nor did he provide any particulars or elaboration as to his only complaint that they failed to acknowledge clear evidence of unavailability or unreliability of state protection in Nigeria, which is otherwise factually incorrect as it is clear that the Director did properly consider the availability and effectiveness of state protection in his home country from those relevant COI set out in paragraph 17 and the Appendix to his decision, which were provided to the Board in the hearing bundle for the applicant’s appeal of which no doubt the Board had also taken into consideration. As such I do not see how this ground can reasonably be arguable for his intended challenge.

12. Otherwise the applicant has failed to put forth any other ground for his intended application. As has been repeatedly emphasized by the Court of Appeal, 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 Re Litoun Mounsy [2018] HKCA 537.

13. Furthermore, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nigeria, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

14. 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.

15.  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.”

Legal Principles

10.  In considering whether to extend time for appealing, the Court will have regard to: (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 putative respondent if extension of time was granted (although the lack of prejudice does not mean that an extension of time should be granted).

Discussion

11.  As for (1), we are of the view, as was the Judge, that the delay of 4 days in seeking to lodge an appeal was not significant in this situation.  As for (2), the applicant explained that he did not receive a copy of the JR Decision posted to him on 3 October 2019 and he was given a copy of that Decision only on 18 October 2019.  The court record showed that the JR Decision posted to the applicant on 3 October 2019 was returned marked “no such address”.  Although it is the responsibility of the applicant to provide an address to the court to which the JR Decision could be received by him, in view of the short delay of only 4 days, it is unnecessary for the court to delve too much into the issue of the reasonableness of the delay. 

12.  However, the most important consideration is (3) the prospect of success of the intended appeal.  In the applicant’s summons and supporting affirmation, he stated only that the order dated 14 January 2020 made by the Judge (ie the Extension Decision) is unfair and unreasonable, and it should be set aside as his intended appeal has a real prospect of success.  In his written submissions, he stated that there was no error of law in the JR Decision, but there was serious procedural unfairness, namely, lack of legal representation, and whether there ought to be an additional basis for advancing his case under the BOR 2 risk. 

13.  It would first be noted that neither of these 2 grounds had been advanced before the Judge (see Nupur Mst v Director of Immigration [2018] HKCA 524).  In any event, they are without any merits.  In respect of the lack of legal representation, the applicant was afforded legal representation in the preparation of his claims. It is well-established that there is no entitlement to legal representation at all stages.  In respect of the BOR2 risk, the Director had considered this ground at the same time as the other grounds in the Decision dated 21 February 2017.  The TCAB had also considered his claim on this ground [10(b), 51].  He has not indicated what “additional basis” there is.

14.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 21 January 2020.

15.  Since the present application is totally without merit, we further make an order under Order 59 r.2A(8) RHC that the applicant may not request our determination to be reconsidered at an oral hearing.