RE OKPALA CHINEDU FRANCIS alias CAMARA JOSEPH

CAMP 564/2021, [2024] HKCA 224

On Appeal from [2020] HKCFI 2695

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 564 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 980 OF 2018)

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J U D G M E N T

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

1.  By a summons dated 16 December 2021, the applicant applied to this Court to “review” the order made by Deputy High Court Judge P Li (“DHCJ Li”) dated 30 November 2021.  By that order, DHCJ Li refused the applicant’s application for extension of time to appeal (“the EOT Decision”) ([2021] HKCFI 3544) against the order of Deputy High Court Judge CP Pang dated 11 November 2020 (“DHCJ Pang”), refusing to grant leave to the applicant to apply for judicial review (“the Leave Decision”) ([2020] HKCFI 2695).

2.  The intended judicial review was directed at the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 8 March 2016[1] (“the Board’s Decision”), refusing to allow the applicant to file a late appeal against the decision of the Director of Immigration (“the Director”) dated 7 June 2016 rejecting his claim for non-refoulement protection (“the Director’s 1^st Decision”) which covered torture risk[2], BOR3 risk[3] and persecution risk[4].  It appears that there was no appeal made to the Board against the decision of the Director dated 8 December 2016, by which the Director rejected the applicant’s non-refoulement claim based on BOR2 risk[5] (“the Director’s 2^nd Decision”).

3.   Having considered the paper, we are of the view that it is appropriate to determine this application without a hearing under Order 59, rule 14A of the Rules of the High Court, Cap 4A (“the RHC”).

Background

4.   The applicant has dual nationalities of Nigeria and Guinea.  He entered Hong Kong on 16 May 2009 using his Guinean passport and was permitted to remain as a visitor until 30 May 2009.  He overstayed and was arrested by the police on 20 February 2010.  He was subsequently convicted of the offence of overstaying and sentenced to six weeks’ imprisonment.  On 14 January 2011, he was further convicted of the offence of trafficking in dangerous drugs and sentenced to 10 years’ imprisonment.  By way of written representation dated 30 June 2010, he made a torture claim.  Upon the commencement of Unified Screening Mechanism on 3 March 2014, his torture claim was taken to be a non-refoulement claim.  Factual details of the applicant’s claim were summarised by DHCJ Pang at [3] and [4] of the Leave Decision.

5.  Briefly stated, the applicant claimed that if refouled to Nigeria, he would be harmed or even killed by his paternal uncle over a land dispute.  He claimed that his uncle cast a spell on him and his family members and in around 1986, his uncle poisoned a piece of land of his late father in order to take over the land.  He further claimed that his father died in 1986 when he entered the poisoned land, and his mother and siblings later died in a car accident which he believed was due to the spell.  During this period, he also found blood in his urine and the doctor diagnosed that he was also poisoned.  In 2005, he moved to live with his father’s close friend in another area of Nigeria, but was treated badly.  He then left Nigeria for Guinea where he stayed for a few months without any problem.  He later obtained his Guinean passport and a visa to China.  He then returned to Nigeria, but finally left Nigeria for Mainland China by air in May 2009.  He subsequently came to Hong Kong.  He accepted that he would have no danger or problem in Guinea, except that he had no family ties or friends there.

6.  By the Director’s 1^st Decision, the Director rejected his non-refoulement claim. The Director’s 1^st Decision covered torture risk, BOR3 risk and persecution risk.

7.  On 13 June 2016, the applicant wrote to the Board to request for delay in submitting his Notice of Appeal against the Director’s 1^st Decision until he was released from prison as he had health problems and wished to change his lawyer.  By a letter to the applicant dated 20 June 2016, the Board reiterated the 14-day time requirement under section 37ZT(1) of the Immigration Ordinance, Cap 115 (“the IO”).  The applicant eventually lodged a Notice of Appeal against the Director’s 1^st Decision to the Board which was received by the Board on 20 October 2016.  By then, he was late for almost four months.

8.  On 8 March 2017, by way of the Board’s Decision, the Board dismissed the applicant’s application for leave to appeal out of time.  Although the applicant claimed that he was in poor health and had a problem with writing, the Board found that his health problem was a bare assertion without any documentary evidence in support and also that his problem with writing would not justify a delay of four months in filing his Notice of Appeal.  As he failed to explain his delay and had shown no special circumstances pursuant to section 37ZT(3) of the IO, the Board disallowed his late filing of Notice of Appeal.

9.  It is noted that the Director on his own initiative invited the applicant to submit further materials for consideration of his claim based on BOR2 risk.  The applicant did not submit any additional facts other than requesting to add his second name and to change his date of birth. The applicant also raised a new claim that if refouled to Nigeria, he would be facing another prison term up to three to four years because of the drug offence he had committed in Hong Kong.

10.  By the Director’s 2^nd Decision, the Director took into account all the facts previously submitted under the Unified Screening Mechanism and, absent any additional facts on BOR2 risk, rejected the applicant’s non-refoulement claim based on BOR2 risk.  As mentioned at [2] above, there is no appeal against the Director’s 2^nd Decision.

The Leave Decision

11.  On 31 May 2018, the applicant filed a Form 86 with a supporting affidavit applying for leave to apply for judicial review against the Board’s Decision. By then, he was almost one year late in taking out his application.  In his supporting affidavit, he stated that he did not have legal representation throughout the appeal to the Board and referred to the requirement of high standard of fairness.  He repeated his health problem causing the late filing of his appeal to the Board and complained that the Board rejected his explanation without giving any reason.

12.  Notwithstanding that DHCJ Pang wrote to the applicant inviting him to make submissions and to confirm whether he wanted an oral hearing, there was no response or return of mail.  As he did not make any request for oral hearing, the application was considered by DHCJ Pang on paper.

13.  By the Leave Decision, DHCJ Pang dismissed his application for leave to apply for judicial review.  His reasons were set out in details at [13] - [35] of the Leave Decision.  In gist, DHCJ Pang found that there was no request for extension of time or explanation for the substantial delay in the applicant’s leave application for judicial review and the inexcusable delay in itself would be a sufficient ground to dismiss the application.  DHCJ Pang also found that there was no valid reason for the delay for four months in filing the Notice of Appeal and the Board was plainly correct in disallowing his late filing.  DHCJ Pang considered that although the Board did not expressly mention that it had considered the merit of his claim as required in Re Qasim Ali [2019] HKCA 430, the outcome would be the same.  His claims were too far-fetched and without any evidence in support.  He would have reasonable state protection in Nigeria and internal relocation was a viable option for him.  He could also re-settle in Guinea.  His complaint on the lack of legal representation for the hearing at the Board is wholly without merit as his case was already properly presented to the Director with the assistance of duty lawyer and the high standards of fairness did not demand legal representation being made available all the time to a non-refoulement claimant.  Accordingly, DHCJ Pang refused to grant leave to the applicant to apply for judicial review.

14.  At [32] of the Leave Decision, DHCJ Pang took his own initiative to consider the Director’s 2^nd Decision and rightly held that the double jeopardy argument raised by the applicant would not assist him as the right of not to be subject to double jeopardy had been held as neither non-derogable nor absolute by the Court of Final Appeal in Ubamaka Edward Wilson v Secretary for Security & Anor (2012) 15 HKCFAR 743.

The EOT Decision

15.  Under Order 53, rule 3(4) of the RHC, the applicant may appeal against the Leave Decision to the Court of Appeal within 14 days of the order. No notice of appeal was filed by the applicant within the 14-day period.

16.  On 29 March 2021, the applicant filed a summons (“the EOT Summons”) together with a supporting affidavit for extension of time to appeal against the Leave Decision.  By then, he was over four months late with his intended appeal.  In his supporting affidavit, he claimed that he did not receive the Leave Decision.  He further claimed that he was not aware of the 14-day time limit, and by the time he found out, the time limit had already expired.  The hearing for the EOT Summons was held on 30 November 2021 and the applicant attended the same.

17.  By the EOT Decision, DHCJ Li did not accept the applicant’s explanation for delay.  In any event, DHCJ Li also noted that in disallowing his late filing of Notice of Appeal, the Board had not considered the merits of the applicant’s case. Despite this irregularity, DHCJ Li considered that as the factual background before the Board and DHCJ Pang was identical; had the Board considered the merits, it would be inevitable that the Board would come to the same conclusion as DHCJ Pang.  In the circumstances, DHCJ Li held that it would be futile to quash the Board’s Decision and remit it for consideration; and having considered all relevant factors, the outcome would be the same and the applicant’s application for extension of time to appeal was refused.

The Present Application

18.  By a summons and supporting affidavit both filed on 16 December 2021, the applicant applied to “review” the EOT Decision.  In his summons, he failed to give any reason in support of his application, but requested for an oral hearing.  In his supporting affidavit, he asserted that he disagreed with the decision made by the Director and that by the Board and did not think his case was determined fairly.  He also requested that his case be reconsidered.  He did not point to any errors in the Leave Decision or the EOT Decision.

19.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] - [8], we will treat the present application as a renewed application for extension of time to appeal against the Leave Decision.

20.  Pursuant to the directions given by the Registrar of Civil Appeal dated 16 December 2021, the applicant lodged his written submissions on 29 December 2021. In those submissions, he contended that it was not easy for him to appeal against the decision as he did not know thoroughly how his case was determined.  He also contended that he was not provided with proper legal or language assistance and the decision was reached in a procedurally unfair manner.  He complained that he was not fully informed of his rights and was not given the opportunity to be heard with assistance.

Discussion

21.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of success of the intended appeal; and (d) the prejudice to the putative respondent if extension of time was granted: Re Rahman Wasif [2019] HKCA 299 at [13].

22.  We consider that a delay of over four months is substantial.  We also agree with DHCJ Li that the applicant failed to provide cogent explanation for his delay.  As such, the Court will only grant extension of time if his appeal has a real prospect of success: Re Kanwal Gulnaz [2021] HKCA 636 at [15]; Re Ansar Muhammad [2018] HKCA 227 at [8]; and Re MA [2019] HKCA 1020 at [18].

23.  The general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in assessing the merit of an intended appeal, this Court will focus on the Leave Decision and will only consider reversing that decision if an applicant can demonstrate that the lower court made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong: Sakatter Singh v Director of Immigration [2021] HKCA 1490 at [15].  General and bare assertions without any specific particulars are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].

24.  Nowhere in the summons, supporting affidavit or written submissions for the present application did the applicant identify any proper grounds of appeal or errors committed by DHCJ Pang.  His complaints are general and bare assertions without any specific particulars, elaboration or evidence in support.  They do not constitute viable grounds of appeal.  The intended appeal must fail on this basis alone.

25.  In any event, his allegations are wholly without merit.  It is trite that the high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as he desires: Cucan Fatimah v Torture Claims Appeal Board [2019] HKCA 1264 at [20].  Further, in the present case, all the court documents, including the summonses, the supporting affidavits, and the written submissions in support of this intended appeal, were written in English.  It shows that either the applicant is himself conversant with the English language or he has access to language assistance of his own if he finds it necessary.  It is therefore clear that the applicant was not in any way prejudiced.

26.  As mentioned at [13] above (see [29] of the Leave Decision]), it is well established that a non-refoulement claimant does not have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11]; Re Tariq Farhan [2018] HKCA 17 at [11]; and Re Lopchan Subash [2018] HKCA 37 at [13].  In any event, the assessment of his non-refoulement claim by the Board and the consideration of his application for leave to apply for judicial review by DHCJ Pang were thorough and fair.  We consider that a high standard of fairness has been achieved in the overall process of the determination of his non-refoulement claim.  Accordingly, there is no merit in his intended appeal.

27.  Although the Board did not consider the merits of his claim in refusing his application for late filing of his Notice of Appeal, DHCJ Pang had nevertheless reviewed, among other things, the Director’s 1^st Decision and considered the merits of his case, before coming to the view that there was no prospect of success in his intended application for judicial review.  We see no basis to disturb the Leave Decision.

28.  For the above reasons, the intended appeal has no prospect of success.  It will be futile to extend time.  The application for extension of time to appeal is therefore refused and the applicant’s summons filed on 16 December 2021 dismissed.