UDEH DOMINIC ONYEMAECHI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 120/2019

[2019] HKCA 977

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 120 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 785 OF 2017)

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BETWEEN

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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.  The applicant is a Nigerian national who entered Hong Kong on 22 January 2008 and he has overstayed since 6 February 2008. On 19 October 2009, he was arrested by the police for overstaying. He raised a non-refoulement claim on 23 October 2009 on the basis that he would be killed by a former business partner as a result of a dispute over money.

The Director’s decisions

2.  By a Notice of Decision dated 5 January 2015 and a Notice of Further Decision dated 26 October 2016, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim.

The Board’s decision

3.  The applicant attended the hearing of the appeal against the Director’s decisions before the Torture Claims Appeal Board (“the Board”) on 12 December 2016.  The Board considered, inter alia, that the evidence of the applicant is unreliable, improbable and lacking in credibility.  The applicant had not suffered from any physical violence or harm from his former business partner other than one oral threat to kill him if he did not return the money in 2004.  The Board found that the applicant failed to establish that his suffering attained a minimum level of severity physically or mentally required for non-refoulement protection.  The Board also found that state protection is available in Nigeria.  The appeal was thus dismissed by the Board on 7 July 2017.

The intended judicial review

4.  The applicant filed a Form 86 and an affidavit on 19 October 2017 to seek leave to apply for judicial review against the decisions of the Director and the Board.  The application was made out of time.

The judge’s decision

5.  On 27 July 2018, Campbell-Moffat J dismissed the application as the applicant had submitted no explanation for his delay and had not sought leave for an extension of time. 

6.  On 10 August 2018, the applicant applied for leave to appeal against the order dated 27 July 2018.  He submitted, among other things, that he had applied for legal aid.  The judge granted leave to appeal on 8 October 2018^[1] on condition that the applicant shall file with the court documentary confirmation from the Director of Legal Aid of the application for Legal Aid in respect of the application for judicial review and the date of refusal of that application within 14 days.  

7.  As the said conditions were fulfilled by the applicant, leave to appeal against the order dated 27 July 2018 was granted to him on 19 October 2018. 

8.  However, the applicant did not proceed with the appeal thereafter.  On 31 January 2019, he filed a summons to apply for an extension of time to appeal.  Having considered the length of the delay in progressing his appeal, the reason given for the delay as well as the underlying merits of his application both as to judicial review and on appeal, the judge rejected the application on 27 May 2019, as it would not be in the interest of justice to grant an extension of time^[2].

9.  The applicant filed a renewed application with the Court of Appeal for an extension of time to appeal on 10 June 2019.

The grounds of appeal

10.  In his written submissions, the applicant stressed that high standards of fairness are required in the determination of a torture claim^[3] and submitted that the adjudicator had acted in a procedurally unfair manner in dealing with his application without properly assessing his credibility^[4].

11.  He stated in the summons filed on 10 June 2019 that he did not receive the sealed order, the Call-1 form and the judgment before the deadline for filing the notice of appeal as these documents were lost by post.  He only got these documents after searching the court file^[5].

Analysis and disposition

12.  In considering whether to extend time for appealing against a decision refusing 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.  Leave to appeal was granted by the judge on 19 October 2018.  Pursuant to Order 59, rule 4(1)(a) of the Rules of the High Court (Cap 4A), the applicant had 7 days to serve a notice of appeal after leave to appeal was granted.  The applicant only took out a summons in the court below on 31 January 2019 for an extension of time to lodge his appeal.  He was late by more than 3 months.  The delay is substantial. 

14.  In the present summons, he explained that his delay was due to the fact that he did not receive the sealed order, Call-1 form and the judgment within 14 days from 27 May 2019 as he could only get them after searching the court file.

15.  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 occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant^[6].

16.  In assessing the merit of the intended appeal, the court would adopt the following legal principles in dealing with appeals of non‑refoulement cases^[7]:

(1)   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 Country of Origin Information (“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.

(2)   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.  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.

(3)   In respect of new arguments, the Court of Appeal will not generally entertain fact-and-evidence sensitive new arguments which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

(4)   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.

17.  The applicant’s submissions are bare assertions without particulars.  He has failed to establish any error of law or procedural unfairness or irrationality in the decision of the Board.

18.  We dismiss the summons filed on 10 June 2019 as the applicant has failed to show he has any prospect of success in the intended appeal.