RE NWACHUKWU CHIMA COSMAS

CAMP 522/2021

[2022] HKCA 1755

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 522 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1503 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 11 May 2021, DHCJ Bruno Chan (“the Judge”)  refused to grant leave to the applicant to apply for judicial review concerning his non-refoulement claim (“the JR Decision”). 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 17 June 2021 for extension of time to appeal against the JR Decision.  The summons was dismissed by the Judge on 3 November 2021. 

3.  On 17 November 2021, the applicant filed a summons in CAMP 522/2021 (“the Summons”)  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 17 November 2021, the applicant lodged his written submissions on 1 December 2021. 

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 arrived in Hong Kong on 4 August 2011 as a visitor and was permitted to stay up to 25 August 2011.  He overstayed and was arrested by the police on 27 December 2015.  He was then referred to the Immigration Department for investigation and on 29 December 2015, he raised a non-refoulement claim alleging that if refouled, he would be harmed or killed by the terrorist group Boko Haram (“BH”)  for being a Christian.  The factual background of this case was succinctly summarised by the Judge at [2] – [5] of the JR Decision ([2021] HKCFI 1340).

7.  By a Notice of Decision dated 21 March 2017, the Director had decided against the applicant’s claim.  The Director’s decision 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 decision to Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”).  The applicant attended an oral hearing on 9 March 2018 and by its decision dated 7 June 2018, the Board dismissed the appeal and confirmed the Director’s decision.  The Board found that in the single incident of assault on him in 2010, committed without any weapons, the applicant did not sustain serious injury [28(b)], and there was no objective evidence to suggest that he applicant and his family were personally or specifically targeted by BH because of their religion [61].  The applicant’s allegation that his family members were killed by BH was purely hearsay [30, 66] and not supported by reliable evidence.  Further, BH are not public officials, and on the contrary, the Nigerian government has been taking military action against it [49].  There is no evidence of state instigation or acquiescence [52, 69], and the applicant had no problem traveling to Hong Kong in 2011.  Lastly, relevant country of origin information (“COI”)  suggested that BH did not exclusively or primarily target Christians, and there is reasonable protection upon the applicant’s return to Nigeria [40] – [49].  For the aforesaid reasons, the applicant’s claim was rejected on all applicable grounds.

Application for leave to start judicial review

9.  On 30 July 2018, the applicant filed a Form No. 86 to apply for leave to judicially review the Board’s decision on the following grounds:

(1)  The Board failed to provide explanation as to what applicable grounds and what evidence or grounds are applicable to the applicant’s claim.

(2)  The Board treated the applicant’s claim as hearsay evidence, which rendered his case useless and a failure. 

(3)  The Board was wrong to reject the applicant’s case that he was a Christian, which rendered his case useless and a failure.  

The JR Decision

10.  The applicant attended an oral hearing on 19 January 2021.  After due consideration of the decision of the Board, the Judge refused leave for judicial review for reasons set out in [11] - [14] of the JR Decision:

“11.  These are however all just broad and vague assertions of the Applicant without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Board deal with his claim as hearsay, and given the detailed analysis and reasoning of the Adjudicator in paragraphs 59 – 75 of the decision with the benefit of hearing the Applicant in his evidence during his appeal hearing, it is plainly incorrect in the Applicant’s complaint that the Board failed to give any explanation for its determination of his claim, 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.  The fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate away from his home district or the northeastern part of Nigeria where Boko Haram operated to the safer southern part of the country, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.  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.”

Application for extension of time to appeal the JR Decision

11.  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 17 June 2021 for an extension of time to appeal.  That was dismissed by the Judge on 3 November 2021.  Hence, the Summons to this court. 

Discussion

12.  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). 

13.  As for (1), the applicant was late by more than 3 weeks between the deadline for filing his appeal against the JR Decision and the summons filed in the Court of First Instance.  His delay was substantial.   

14.  As for (2), the reasons for the delay, the applicant said in his affirmation that he did not receive the JR Decision in time.  However, the court file showed that the JR Decision was sent to him on 11 May 2021 at his last reported address, and was not returned through the post.  In the absence of any further details or documentary evidence to corroborate his bare assertions, there was no good reason for the applicant’s delay.

15.  The most important consideration is (3)  the prospect of success of the intended appeal from the JR Decision.  The applicant had failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may reasonably be argued that the JR Decision was unfair or unreasonable.  He has simply asserted that   

(1)  Nigeria is insecure in general;

(2)  Nigeria is controlled by terrorists and hence there is no state protection;

(3)  The political situation in Nigeria is not conducive for him to return and live in safety.

16.  The Board had considered the applicant’s case and the relevant COI and come to the conclusion that neither the applicant nor his family were targeted by BH personally or specifically.  Even on his own case, the incidents involving BH were not so serious as to show a real intention to cause him any serious harm.  It is perfectly open for the Board 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.  

17.  Regarding the issue of internal relocation, the Board had explained at [106] to [109] of its decision that the Board would only consider this if the applicant had established a real risk of persecution in his home area, which he had not.  Thus, it was not an issue considered and decided by the Board, and as such not within the purview of the Judge in the application for leave to commence judicial review.

18.  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.  

19.  As the intended appeal is unarguable, it would be futile to extend time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 17 November 2021.