RE LOUA CECE

HCAL 2371/2018

[2022] HKCFI 3724

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2371 OF 2018

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D E C I S I O N

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The application

1.  The applicant is an illegal immigrant by staying in Hong Kong without permission and he lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected his application and he appealed to the Torture Claims Appeal Board (“the Board”). Having considered his evidence, the Board, by its Decision (“the Board’s Decision”), rejected his appeal and affirmed the Director’s Decision.

2.  Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

3.  By Order dated 1 November 2022 (“the Court’s decision”), the Court dismissed his application for the reason that there was no realistic prospect of success in his intended application.

4.  The applicant filed a summons on 24 November 2022 applying for extension of time to appeal against the Court’s decision. In his affirmation in support of his application, he did not set out any specific ground.

Discussion

5.  Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, I decide to determine this application without an oral hearing.

6.  The Court shall consider the factors as set out in AW v. Director of Immigration and William Lam [2016] 2 HKC 393 at para. 27(3) in considering if extension of time should be extended: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. The deadline for his appeal is 15 November 2022. The applicant is late for 9 days. I shall consider the merits of his case.

7.  In Re Adumekwe Rowland Ejike [2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”

8.  The applicant claimed that, if refouled, he would be harmed or killed by the secret agents or the authorities of Nigeria as he was involved with a group named “Movement for the Actualization of the Sovereign State of Biafra” (“MASSOB”).  He stated that he could not be refouled to Guinea as he would be sent back to Nigeria and face the same risk of harm.

9.  The Director refused his application because his claim was unsubstantiated. He appealed to the Board.

10.  Having considered the applicant’s evidence, the Board made the following observations.  First, the applicant had not proved to the Board’s satisfaction that he was a national of Guinea.  Even if he was, doubts arose on whether he could reside safely in Guinea [64]-[72]. Second, it was plausible that the applicant was a member of MASSOB at the material time.  However, on his own evidence, including the fact that he went to the governmental authority to collect his passport without being arrested, the Board found that he was not actively pursued by the Nigerian government [74]-[75].  Thirdly, the Board examined his immigration records and found that his travels among the countries did not support his assertion that it was due to the risk of harm in Nigeria [76]-[85].  Further, the Board opined that there was no evidence suggesting that the applicant’s past membership between 2003 to 2006 would attract the government’s adverse interest in him [86].  Fourthly, the Board also rejected his claimed risk of harm as a Christian [87].  Fifthly, the Board equally rejected the applicant’s basis that he would be prosecuted in Nigeria as the potential prosecution against him in Nigeria was, under the law of Hong Kong, not a basis for the non-refoulement claim [88].

11.  Based on the aforesaid observations, the Board concluded that, while the applicant might be a member of MASSOB, his evidence on the past events, namely, the detention and torture of the secret agents was not credible.  It therefore refused to accept that the applicant would face any risk of harm upon refoulement [91].

12.  The above references refer to the Board’s Decision.

13.  The applicant has raised no valid reason to show that he has a realistic prospect of success in his intended appeal.

14.  In the circumstances, I refuse to extend time for his appeal. Accordingly, I dismiss his application.