ONYEJI CHIMEZIE KINGSLEY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULMENT CLAIMS PETITION OFFICE

CAMP 464/2022

[2023] HKCA 328

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 464 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 602 OF 2019)

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JUDGMENT

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

1.  On 7 November 2022, the Applicant took out a summons to apply for an extension of time to appeal against the order of Campbell-Moffat J (“the Judge”)  dated 15 March 2022 (“the Order”)  refusing to grant him leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  dated 31 December 2018, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 31 August 2017 rejecting the Applicant’s non-refoulement claim.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.  The Applicant is a national of Nigeria.  He entered Hong Kong lawfully on 27 April 2014 as a visitor, but failed to leave Hong Kong after the expiry of his limit of stay.  He was arrested by the police on 16 July 2014.  He made a non-refoulement claim by way of written representation on 19 July 2014, alleging that if he returned to Nigeria, he would be harmed or killed because he failed to repay a loan that he took out for his business.  Details of the Applicant’s claim have been summarised by the Judge at §§1-4 of the CALL-1 Form ([2022] HKCFI 710).

5.  By a Notice of Decision dated 31 August 2017, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] (“the Director’s Decision”).

6.  The Applicant appealed the Director’s Decision to the Board.  On 31 December 2018, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  The Board found that even accepting the Applicant’s case at its highest, the risk of serious harm to him was low and was further diminished by the existence of reasonable state protection and availability of internal relocation.  The Board concluded that there was no evidence that the Applicant was personally at risk in Nigeria from any person(s)  in that country and accordingly, the Applicant’s claim for non-refoulement protection failed on all applicable grounds.

7.  On 4 March 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground for relief was given in the Form 86.  Attached to his supporting affirmation of the same date was a document entitled “Grounds on which relief is sought”.  In that document, the Applicant contended, inter alia, that (i)  the Board erred in failing to maintain a high standard of fairness in that it failed to hold an oral hearing allowing the Applicant an opportunity to put forward “her” case, (ii)  alternatively, the Board erred in approaching the matter by simply trying to see whether it could “find fault with the decision of the Immigration Officer”, and failing to consider matters such as the country conditions of the Applicant’s country of origin, and (iii)  the Board failed to take into account that the Applicant had insufficient legal knowledge in the Immigration Department’s guidelines and that could jeopardize “her” representation in the appeal process, and failed to inform the Applicant in “her” language that “she” could “complain”.

THE JUDGE’S DECISION

8.  On 15 March 2022, the Judge dealt with the leave application on paper, and refused to grant the Applicant leave to apply for judicial review for the following reasons:

“[9] There were grounds of review attached to his affirmation in support of his Form 86 dated 4 March 2019, however these did not appear to be relevant to the case of the applicant[5]. Insofar as any of these grounds, which were clearly drafted for a different case, can be said to be relevant to the case of the applicant, the applicant submits inter alia that he was treated unfairly by reason of the fact that he was not provided with legal representation. The fact the applicant was unrepresented in his appeal has not been shown to be procedurally unfair. The Duty Lawyer Scheme will continue to represent applicants in their appeal if they are of the view there is merit in their cases. Their assessment is on a case-by-case basis. As the applicant did not request an oral hearing before this court, I am unable to ascertain if he did apply to the scheme for legal representation and if they did refuse his application, on what grounds they refused it. This ground is not reasonably arguable.

[10] The applicant also appears to submit that he was not informed that he could complain in his language. He does not specify what he wished to complain about, to whom and when. The applicant had the benefit of an Igbo interpreter at the time of the hearing before the TCAB and was provided with the opportunity to say anything he wished. He was thereafter provided with a copy of the Decision and has exercised his right of judicial review. The undersigned fails to understand the significance of this complaint. It has no merit.

[11] There are no particulars provided for any of the applicant’s grounds. They are copied from grounds submitted in other applications for judicial review and, without more, are wholly unhelpful to the applicant and a waste of judicial time. In several respects they are wholly irrelevant and bear no relation to the matters at hand. The applicant has a duty to state the grounds of his intended judicial review and why they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung & Anor (2007)  10 HKCFAR 676. It is incumbent upon the applicant to make good his grounds, which he has failed to do. Without more, the court is restricted to that which is self-evident from the papers. All of the applicant’s grounds are without merit either for the reasons given above or because the issue does not arise in all the circumstances of this case.

[12]  Despite the fact that the applicant did not submit any proper grounds of review, due to the seriousness of the issues at hand, I have considered the papers and grounds 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.  The facts as presented by the applicant to found his claim were very straight forward and upon any view of the regime, do not fall under any head of claim.  There is no criticism of his determination, which was open to him on the facts and eminently reasonable.”

9.  On 17 October 2022, the Judge refused the Applicant’s application by summons dated 25 July 2022 for an extension of time to appeal against the Order ([2022] HKCFI 3215).

THIS APPLICATION

10.  By a summons taken out on 7 November 2022, the Applicant applied to the Court of Appeal for an extension of time to appeal against the Order.  In that summons, the Applicant stated as follows:

“The decision of Honourable Justice Campbell-Moffat dated 15^th March 2022 refusing my application for extension of time to appeal was unfair. I am still facing danger in my country. The authority in my country will not protect me and I needed an interpreter.”

11.  Pausing here, it may be noted that the Judge’s decision dated 15 March 2022 did not concern the Applicant’s application for extension of time to appeal.  It concerned the question of whether leave to apply for judicial review should be granted to the Applicant.

12.  The Applicant has not lodged any written submissions in accordance with the directions given by the Registrar of Civil Appeals on 7 November 2022.

DISCUSSION

13.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

14.  The prospect of success of an intended appeal is important.  The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

15.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.  In particular, 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.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

16.  Further, the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.  No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

17.  The Applicant has not identified any basis for his contention that the Judge’s decision was unfair to him.  The mere repetition that he still faces danger in his home country is not a valid ground of appeal.  He has failed to point to or show any error in the Judge’s decision of 15 March 2022, nor has he raised any viable ground of appeal against the Order.

18.  There is no prospect of success in the Applicant’s intended appeal.  It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

19.  The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 7 November 2022 is dismissed.

20.  If required, the Applicant may make an appointment with the clerk to this Court for this judgment to be orally interpreted to him in his language of choice in the court’s premises.