AKINBOBOLA IDOWU ALEXANDRA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 198/2018

[2019] HKCA 508

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 198 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 701 of 2017)

__________________________

__________________________

________________

JUDGMENT

________________

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

1.  This is the applicant’s renewed application for leave to appeal out of time against the decision of Campbell-Moffat J (“the Judge”) given on 27 July 2018 refusing him leave to apply for judicial review[1]. The applicant’s previous application for leave to appeal out of time was refused by the Judge on 21 September 2018.

2.  The applicant had lodged a written submission to support his application.  His wife in Hong Kong had also written to the Court to support his application.  While the Torture Claims Appeal Board (“the Board”), who is the putative respondent, indicated it would take a neutral stance, the Director of Immigration (“the Director”), who is the putative interested party, had lodged a written submission and a bundle of authorities to oppose the application.

3.  Under Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the summons and the written submissions lodged with the court, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Board dated 15 September 2017 dismissing his appeal against the decisions of the Director dated 28 May 2015 and 14 June 2017 rejecting his non-refoulement claim.

5.  The applicant’s claim was set out in detail in the decisions of the Director and the Board, and summarised by the Judge in [4] to [6] of the Form CALL-1. 

6.  Briefly stated, the applicant is a Nigerian national.  He entered Hong Kong on 21 June 2011 as a visitor and his permission to stay was last extended to 11 July 2011.  He overstayed and was arrested by the police on 30 September 2011.  On 3 October 2011, he raised a torture claim, which was later taken as a non-refoulement claim and assessed under the Unified Screening Mechanism. 

7.  The applicant’s claim is based on his fear of being harmed or killed by the family members of his late partner, Rebecca, with whom he has two sons.  According to the applicant, Rebecca died because of complications that developed when giving birth to their third child.  Her father is a politician and her uncle is in the Nigerian Army.  Rebecca’s family blamed the applicant for her death, and also suspected the applicant had practised some rituals on her.  Rebecca’s uncle had brought people to the applicant’s shop and damaged the furniture, and Rebecca’s family members had burned down the applicant’s home and attempted to kill his father.  When the applicant was in Hong Kong on a business trip, he was told Rebecca’s uncle had again gone to his shop to look for him.  Fearing for his safety, he decided not to return to Nigeria.

8.  By his two decisions, the Director rejected the applicant’s claim on all applicable grounds.  The first decision covered the torture risk[2], the BOR 3 risk[3], and the persecution risk[4] grounds, and the further decision dealt with the BOR 2 risk[5] ground.

9.  The applicant’s appeal to the Board was heard on 19 August 2016 and 25 July 2017, during which the applicant gave evidence and answered questions put by the Board.  For the reasons set out at [24] to [87] of its decision dated 15 September 2017, the Board dismissed the appeal.  In gist, the Board found the applicant’s evidence incredible and unreliable.  The Board further found that, even if the applicant’s case were accepted, the availability of state protection and internal relocation would negate or lower the risk of the harm he feared.  The Board also considered that the applicant’s case, even if accepted, did not meet the requirements under any of the applicable grounds.

10.  On 3 October 2017, the applicant filed a Form 86 together with a supporting affirmation to apply for leave to judicially review the decision of the Board.  By the Form CALL-1 dated 27 July 2018, the Judge refused to grant him leave to apply for judicial review.

11.  The 14-day period[6] for the applicant to appeal the decision of the Judge expired on 10 August 2018. On 14 August 2018, the applicant filed a summons to apply for leave to appeal out of time.  At the hearing on 21 September 2018, the Judge orally dismissed the application[7].  The sealed order was sent to the applicant on 28 September 2018.  Under Order 59 rule 2B(3) of the Rules of the High Court, the applicant had 14 days from the date of the refusal to make a further application for leave to appeal to the Court of Appeal.  This expired on 5 October 2018.  The applicant, however, only filed the present summons on 21 December 2018.  

12.  In considering whether to extend the time for the applicant to make the further application for leave to appeal out of time against the Judge’s 27 July 2018 decision, this Court should 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. 

13.  The applicant’s present application was late by 2.5 months, which is a substantial delay.  In the attachment to the summons, the applicant explained that from the exchanges with the Judge at the hearing on 21 September 2018, he was under the impression that a letter would be sent to him, and also he would be permitted to remain in Hong Kong to await the outcome of his dependant status application, and it was under such circumstances that he had missed the time limit.  As the transcript of the hearing was not made available to us,[8] we are not in a position to ascertain what happened at the hearing and the veracity of the applicant’s explanation.  We will proceed on the basis that the delay was due to a genuine misunderstanding and mistake on the applicant’s part.  

14.  We next turn to consider the merits of the applicant’s intended appeal against the Judge’s refusal to grant leave to apply for judicial review, which is a crucial factor in determining whether the Court should exercise its discretion to grant an extension of time (Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125, Re MK (unreported) HCMP 2609/2016, Islam Raja Rais v. Director of Immigration (unreported) HCMP 881/2017, Re Gurung Min Bahadur [2018] HKCA 226).   

15.  The Judge, when refusing to grant the applicant leave to apply for judicial review, gave the following reasons at [12] and [13] of the Form CALL-1:

“12. There were no grounds of review. The Applicant asks for a re-hearing of his appeal. He has not complained of any procedural irregularity, unfairness or unreasonableness but I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.”

“13. Despite the fact that the Applicant failed to submit any grounds of review, I have considered the papers, grounds and submissions 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 Director and 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. They gave him every opportunity to address their concerns. The Adjudicator, in particular, did not find him to be a credible applicant and explained in detail why that was the case. There can be no criticism of their determinations, which were open to them on the facts and eminently reasonable.”

16.  The applicant did not give any proposed grounds of appeal in his application to the Judge for leave to appeal.  In the summons filed in this Court, the applicant also did not state any ground of appeal.  He merely stated that:

“With regards to my case, I am still facing challenges due to circumstances surrounding it and a number [of] attempts by my attackers to eliminate me back in Nigeria. Vigilante groups have taken over the police activities, due to the support of the politicians they are affiliated with. Mob attack has become too rampant across Nigeria.

On the other hand, most of the police are highly corrupt due to insufficient salaries. I have therefore attached the various local newspapers from Nigeria, regarding various mob attacks on individuals suspected to have involved in any form of ritual related cases and considering a similar circumstance regarding what I have been suspected to have done with which was attributed to using my Rebecca for similar rituals by her family as well as the majority of people that believed such allegation, there is no doubt that my life would [not] be spared if I am captured in a similar circumstance. By this new evidence, I am urging the authorities to re-consider my application.”

17.  The applicant had attached to the summons 11 pages of reports and information downloaded from the internet.  In the written submission, the applicant recounted the basis of his claim, emphasising that he was alleged to have practised certain rituals which would attract death penalty or mob-attacks in Nigeria and gave example of such attack.  He reiterated that his life would be in danger if he were to return to Nigeria.

18.  What the applicant put forward in his summons and written submission are not viable grounds of appeal.

19.  Firstly, the applicant has not identified any error in the Judge’s decision and reasons for refusing to grant leave to apply for judicial review.

20.  Secondly, the Board found there were material differences between the applicant’s case before the Immigration Department and his case before the Board, and did not accept his claim to be credible or reliable.  The applicant had not pointed to any error in this aspect of the Board’s findings.  In the circumstances, his assertion that he would be in danger if refouled to Nigeria cannot be an arguable ground for judicial review.  Neither can it be an arguable ground of appeal against the Judge’s refusal to grant leave to apply for judicial review.   

21.  Thirdly, there is no proper basis for this Court to accept the 11 pages of new documents on Nigeria as new evidence to support the applicant’s application or intended appeal.  This is because an applicant is required to set out in the Form 86 the relief sought and the grounds on which it is sought, and to verify the facts in support of the application by affidavit.^[9] The Form 86 and the affidavit are the materials that the Court of First Instance will consider when deciding whether to grant leave to apply for judicial review.  In an appeal against refusal to grant leave for judicial review, the focus of the Court of Appeal is to examine the decision of the first instance judge in light of the grounds and materials before him.  The scope for admission of fresh evidence is limited.  An applicant must satisfy all the three conditions set out in Ladd v Marshall [1954] EWCA Civ 1, [1954] 1 WLR 1489 before the court will consider whether to admit new evidence.  They are: (1) the new evidence could not have been obtained with reasonable diligence for use at the trial; (2) the new evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and (3) the new evidence must be such as is presumably to be believed, or, in other words, it must be apparently credible though it need not be incontrovertible. 

22.  The applicant has not explained why these materials were not filed in the application for leave to bring judicial review.  Further, it is not the function of the court to re-assess the merits of the applicant’s non-refoulement claim.  Hence, the materials bear no relevance to the applicant’s intended appeal or his present application given he has not advanced any challenge to the Board’s decision, including its rejection of the basis of his claim, and to the Judge’s decision.

23.  Fourthly, we have considered the letter of the applicant’s wife.  While we note that the applicant’s application for dependant visa is being considered by the Director, it is not within the Court’s power to allow the applicant to remain in Hong Kong to await the outcome of the application.  This is a matter for the Director’s discretion.  

24.  For the reasons given above, the intended appeal has no prospect of success.  This being the case, it would be futile to extend the time for applying for leave to appeal.  Accordingly, we dismiss the applicant’s summons filed on 21 December 2018. 

25.  In the circumstances of the case, we consider it is appropriate to make no order as to the costs of the application.

26.  Since the present application is totally without merit, we further make an order under Order 59 rule 2A(8) of the Rules of the High Court that the applicant may not request our determination to be reconsidered at an oral hearing.