RE OKEZIE MUNACHISO alias OKUJETO PHILIP

CAMP 327/2022

[2022] HKCA 1472

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 327 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2005 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”) dated 24 August 2021[1] refusing to grant leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 1 August 2018. In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 12 September 2017 rejecting his non-refoulement claim.

2.  On 26 May 2022, the Judge refused to extend time for the applicant to appeal against his decision.[2]

Background

3.  The applicant is a Nigerian national, born in 1970. He claimed that he had entered Hong Kong using a Ghanaian passport in a different name in 2006 and had overstayed since April 2006. He was arrested by the police on 13 January 2015 for illegally remaining in Hong Kong. He raised his non-refoulement claim by written significations in June 2015. His claim is based on the fear that the Nigerian government would harm or kill him as he was associated with the Movement for the Actualisation of the Sovereign State of Biafra (MASSOB), and that Ezinala priests and the Abodimkpa Cult would harm or kill him because he refused to be sworn in as chief priest and was a Christian. He also feared harm from the Fulani herdsmen who attacked Christians all over the country.

4.  The applicant’s claim was assessed by the Director with reference to all applicable risks, namely, BOR 3 risk,[3] persecution risk,[4] torture risk,[5] and BOR 2 risk.[6] By notice of decision dated 12 September 2017 the Director rejected his claim.

5.  The applicant appealed to the Board against the decision of the Director. The hearing of the appeal was held on 8 May 2018, at which the applicant gave evidence and answered questions from the Board. The Board had serious reservations about the applicant’s credibility. In the end Board noted that there was a protest movement by MASSOB but did not accept the applicant’s evidence regarding his own involvement in the groups. The Board accepted that the applicant might have been associated with the Abodimkpa Cult but did not accept his evidence regarding his future obligation to be anointed as a leader and priest or that he would be killed if this was not done. The Board had some concerns with the veracity of the applicant’s claim to be a Christian but found that, even if he was given the benefit of the doubt, his involvement with Christianity had no impact on his future return to Nigeria, unless coupled with his other claims, which the Board rejected. The Board accepted there were difficulties within Nigeria due to cultural and religious differences, but did not accept that the applicant was at risk either as a specific or a general target, and considered that the applicant could live in an area dominated by Igbo and/or Christians and avoid any real risk from the Fulani herdsmen. In the result, in its decision dated 1 August 2018, the Board dismissed the appeal and affirmed the decision of the Director.

The Judge’s decisions in the court below

6.  On 21 September 2018, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision. The applicant did not specify any ground for judicial review in the Form. In the accompanying affidavit, he merely stated that he was afraid to return to his country as his life would be under threat. His organisation which was a peaceful movement was regarded as terrorists. Religious persecution could take away his life. The authorities would not protect him as he was taken to be a terrorist.

7.  Based on consideration of the documents alone, on 24 August 2021 the Judge issued his decision, refusing to grant leave to apply for judicial review. The reasons were set out at [11] – [16] of the Form CALL-1 as follows:

“ 11. On 21 September 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affidavit of the same date he just repeated his claim of fear of harm from those various parties as before without putting forth any proper ground for his intended challenge, nor did he request any hearing for his application. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the 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 Nupur Mst v Director of Immigration [2018] HKCA 524.

13. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 58 – 94 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, the credibility of which has been further undermined by his failure to raise his claim at reasonable opportunity as stipulated under Section 37ZD of the Immigration Ordinance, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

14. The fact is 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 if true 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.

15. 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.

16. 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.”

8.  The applicant did not appeal within the 14-day period prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), but only took out a summons on 17 September 2021 to seek an extension of time to appeal against the decision of the Judge. He stated that he did not get the letter from the court.

9.  The Judge held an oral hearing of the summons on 12 May 2022 but the applicant failed to appear. In his written decision dated 26 May 2022, the Judge dismissed the application as he did not see any prospect of success in the intended appeal.

The renewed application before this Court

10.  Over three months later, by summons filed on 1 September 2022, the applicant seeks an extension of time from this court for him to appeal against the decision of the Judge refusing to grant leave for judicial review. In the summons and the accompanying affidavit, the applicant merely said he did not agree with the Judge’s decision.

11.  The applicant lodged written submissions on 14 September 2022 in which he reiterated the factual basis of his claim for non-refoulement protection and described what he said was happening in Nigeria. He said he would be killed if he returned to his country because of his religion and involvement in protests. He wanted protection in Hong Kong until the present government in Nigeria is removed from power. He said that the country of origin information relied on by the Director was misleading because most of the available information was written by Muslim journalists while Christian media houses were banned from exposing issues of human rights abuses in detail.

12.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we find it appropriate to determine this application on the basis of the written materials without an oral hearing.

Discussion

13.  Pursuant to Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review. However, as the delay in the court below was short (disregarding the time in August 2021 pursuant to section 31 of the High Court Ordinance), we shall concentrate on the merits of the intended appeal.

14.  We are satisfied that extension of time should be refused because of the lack of merits in the intended appeal. In the present case, after hearing from him and asking him questions, the Board found the applicant’s evidence lacking in credibility. The Board eventually came to the conclusion that the applicant faced no real risk of harm of the requisite level should he return to Nigeria. This is a conclusion that the Board, as the primary decision-maker, was entitled to come to, for the detailed reasons it had given in its decision setting out the problematic areas in the applicant’s evidence. It has to be borne in mind that judicial review is not a further avenue of appeal. The court does not rehear the appeal to the Board on the merits and is concerned only with the legality of the Board’s decision. The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural unfairness, and irrationality in the ultimate decision. The applicant has failed to advance any such public law grounds; nor can we see any from the materials before us.

15.  The role of this court as the Court of Appeal is not to rehear the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal against the judge’s decision based on the grounds of appeal advanced. The applicant has failed to specify any ground of appeal or show how the Judge has erred in refusing to grant leave for judicial review. Having considered the materials available, we share the Judge’s view that there is no reasonably arguable ground for judicial review.

16.  We do not see any prospect of success in the intended appeal. It would be futile to extend the time for a hopeless appeal. The applicant’s summons is accordingly dismissed.