RE CHINEDU EMMANUEL ABALOGU

CAMP 147/2022, [2023] HKCA 853

On Appeal From [2021] HKCFI 1384

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 147 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2693 OF 2018)

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J U D G M E N T

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

1.  On 25 May 2021, DHCJ K.W. Lung (“the Judge”) refused to grant an extension time to the applicant to apply for leave to apply for judicial review concerning his non-refoulement claim and dismissed his leave application (“the JR Decision”) [2021] HKCFI 1384. Under Order 53 r.3(4) Rules of the High Court (“RHC”), where an application for leave to apply for judicial review is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.

2.  The applicant did not lodge an appeal in time.  He filed a summons in the Court of First Instance on 16 June 2021 for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 21 July 2021 [2021] HKCFI 1997.

3.  On 10 May 2022, the applicant filed his summons in CAMP 147/2022 (“the Summons”) in the Court of Appeal applying to this court for an extension of time to appeal the JR Decision.

4.  In compliance with the directions made by the Registrar of Civil Appeals on 10 May 2022, the applicant lodged his written submissions on 24 May 2022.

5.  Under Order 59 r. 14A(1) RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

6.  The applicant is a national of Nigeria. He came to Hong Kong on 31 January 2011 as a visitor.  He overstayed and was arrested by police on 2 May 2013 for overstaying and using an identity card relating to another person.  He was charged, convicted and sentenced to 15 months’ imprisonment.  He raised his non-refoulement by two written significations respectively dated 24 October 2013 and 14 November 2013 alleging that if refouled, he would be harmed or killed by his boss, Oga Fabros (“OF”), first, because he had lost USD 1 million which OF had given to him for payment of goods during his trip to Hong Kong in February 2011, as the applicant had been cheated out of that money by others, and also because OF believed that his son and daughter had died due to the applicant’s inherited status as an “Osu” which the applicant had failed to disclose to OF.  However, he did not repeat his claims about being blamed for the children’s deaths at the hearing before the Board referred to below.  The factual background of this case was succinctly summarised by the Judge at [6] of the JR Decision ([2021] HKCFI 1384).

7.  By a Notice of Decision dated 20 June 2016 and Notice of Further Decision dated 11 July 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

8.  The applicant appealed the Director’s decisions to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and attended an oral hearing on 26 October 2017.  By its decision dated 6 December 2017 (“the Board’s Decision”), the Board dismissed the appeal.  For the reasons set out at [39] to [48], the Board found that the applicant’s claim was vague, inconsistent and implausible.  The Board did not accept the applicant’s evidence that although OF knew that the applicant was illiterate, he still sent the applicant to Hong Kong with a written business schedule and instructions, and the Board noted that after the applicant allegedly lost USD1 million and reported the matter to OF, neither made any effort to recover the money.  As such, the Board did not accept the applicant’s evidence which was riddled with suspicions (such as not going to the hotel OF had booked for him, but going off to stay with two people he had met on the flight, whose names he did not remember) or his claimed fear of harm from OF or persons associated with him, and was not satisfied that the applicant has established grounds that he would face a real risk of ill-treatment should he return to Nigeria.  For the aforesaid reasons, the applicant's non-refoulement protection claim was rejected on all applicable grounds.

Application for leave to start judicial review

9.  On 27 November 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision.  Pursuant to Order 53, rule 4(1) of the Rules of the High Court (Cap.4A), an application for leave to apply for judicial review should be made promptly and in any event within 3 months from the date when the grounds for application first arose.  By the time he filed the Form 86, he was out of time for more than 8 months.

10.  The applicant did not advance any grounds for relief save for saying that he still faces “big problem” and threats to his life and his wife’s life from his enemies in his home country.

The JR Decision

11.  The applicant did not request an oral hearing and the Judge disposed of his application on the papers.  After due consideration of the decisions of the Director and the Board, the Judge refused to grant an extension of time to apply for leave to apply for judicial review and dismissed his leave application for reasons set out in [13] - [19] of the JR Decision:

“13. As mentioned in paragraph 1, this application is late.

14. In AW v Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (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. I shall first consider the prospect of the intended appeal.

15. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13 (1).… …Assessment of evidence and 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.”

17. His grounds in support of this application do not assist his application. He has no factual basis in support of his claim as the Board had rejected his evidence on the facts. As to his wife’s situation, the Director is not duty bound to take into account the various rights relied upon when exercising his discretion to refuse permission to stay to the applicant since such rights are disengaged by section 11 of the Ordinance. See Comilang, Milagros Tecson & others v Director of Immigration [2019] HKCFA 10 §90. Furthermore, this ground was never raised before the Board. The Board has no duty to make investigation into it without the applicant raising it and it should not be considered by the Court at this stage. See Nupur Mst v Director of Immigration [2018] HKCA 524 §14(5).

18. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19. There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.”

Application for extension of time to appeal the JR Decision

12.  As mentioned earlier, the applicant failed to file a notice of appeal within time.  He filed a summons in the Court of First Instance on 16 June 2021 for an extension of time to appeal. That was dismissed by the Judge on 21 July 2021.  Hence, the Summons to this court. 

Discussion

13.  In considering whether to extend time for appealing, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted (although the lack of prejudice does not mean an extension will be granted). 

14.  As for (1), the applicant was late by 8 days between the deadline for filing his appeal against the JR Decision and the summons filed in the Court of First Instance and his delay was not substantial. 

15.  As for (2), the reasons for the delay, the applicant alleged in his supporting affirmation that he did not receive the JR Decision within a reasonable period of time.  The court file showed that the JR Decision was sent on the same day it was handed down to the last reported address of the applicant and the address is the same as that provided in the summons dated 16 June 2021 and it was not returned as undeliverable mail.  As such, there is no good reason for the delay, but it was minimal anyway.  

16.  The most important consideration is (3) the prospect of success of the intended appeal from the JR Decision.  The applicant did not provide any grounds of appeal against the JR Decision. 

17.  In his written submissions, he quoted passages from ST v Director of Immigration ^[5][2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on Wednesbury unreasonableness.  He submitted that “high standards of fairness” applied to the determination of a non-refoulement claim, and the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility.  He further referred to section 37ZT of the Immigration Ordinance (Cap. 115) and contended that in dealing with late filing of notice of appeal, the Board may only take account of the reasons for delay stated in the application and accompanying evidence, and other relevant matters of fact within the Board’s knowledge.  However, he did not explain or elaborate how the legal authorities and provisions would apply to or assist his case.

18.  It is clear from the Board’s decision that the applicant’s claim was rejected for lack of credibility and he had failed to convince the Board that there is a substantial risk of harm upon his return to his home country.  The Board was entitled on the evidence before it to reach its findings and conclusions and the Court would only intervene if there were valid public law grounds.  As with the judge, we do not see any in this case. 

19.  We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we find nothing amiss in the JR Decision.

20.  As the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 10 May 2022.