RE ANOZIE CHIDI FRANKLINE

CAMP 160/2022, [2023] HKCA 539

On Appeal From [2022] HKCFI 2211

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 160 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2791 OF 2018)

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J U D G M E N T

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

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Lung (“the Judge”) dated 30 July 2021[1] refusing his application for leave to apply for judicial review.

2.  The applicant has filed a supporting affidavit, and also lodged a written submission to support his application.

3.  Under Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A, this Court may determine an application for leave to appeal without an oral hearing. Having considered the papers filed in this application and the applicant’s written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant is a national of Nigeria aged 42. He arrived in Hong Kong on 12 November 2014 and was given permission to remain as a visitor until 2 December 2014. He overstayed and was intercepted by the police on 13 March 2015. He later raised a non-refoulement claim based on his fear of being harmed or killed: (1) by a person named Udoka because he witnessed Udoka’s killing of his former boss, Eze; and (2) as a result of the political instability in Nigeria and the terrorist activities of Boko Haram as the government could not provide protection to people and properties. The details of the applicant’s claim were set out in the decision of the Director at [7]. We will not repeat them.

5.  By his decision dated 20 September 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim having regard to the torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk[5] grounds.

6.  The applicant appealed the Director’s decision to the Torture Claims Appeal Board. A hearing was held on 7 May 2018 during which the applicant gave evidence and answered questions put by the Board. By its decision dated 10 September 2018, the Board dismissed the appeal. The Board found the applicant’ not to be a credible witness and considered that much of his claims and evidence were not credible having regard to a significant number of inconsistencies, implausibility and contradictions in his evidence. The Board found the incident of Udoka killing Eze did not occur as claimed or at all; and did not accept that the applicant’s wife and son were shot and killed by Udoka as claimed or at all. The Board further rejected the applicant’s claim of risks of harm due to political instability or the terrorist activities of Boko Haram as there was no evidence that he lived in an area dominated by Boko Haram or he was in opposition to Boko Haram. The Board did not accept that the applicant was of any adverse interest to Udoka or his associates or agents, or to members of the Boko Haram, or to anyone in the government of Nigeria. The Board held that there was no real risk of the applicant suffering harm of any kind for any of the reasons he claimed or for any other reason, and concluded that the claim failed on all applicable grounds.

7.  On 6 December 2018, the applicant filed a Form 86 together with an affidavit to apply for leave to judicially review the Board’s decision. In his affidavit, the applicant stated that: (1) his life was in danger and he could not return to his country; (2) the findings of fact were unreasonable; and (3) the Board failed to observe the high standards of fairness.

8.  The Judge considered the application on paper and refused to give leave to apply for judicial review for the reasons set out in [12] to [16] of the Form CALL-1 dated 30 July 2021. In summary, the Judge found that that for the reasons given, the Board was entitled to make the findings and conclusions against the applicant. The Judge also found no reasonably arguable basis to challenge the Board’s decision in the absence of any error of law, irrationality or procedural unfairness.

9.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made.

10.  By a summons filed on 19 November 2021, the applicant applied for an extension of time to appeal the Judge’s decision. The Judge dealt with the application on paper, and by his decision handed down on 14 December 2021[6] refused the application.

11.  On 19 May 2022, the applicant filed the present summons to make a renewed application to extend the time to appeal against the Judge’s dismissal of his application for leave to apply for judicial review. Order 59 rule 2B(3) of the Rules of the High Court provides that a renewed application for leave to appeal to the Court of Appeal must be made within 14 days from the date of the refusal of the Court of Appeal. The applicant’s present application is accordingly out of time by more than four months. The applicant has given no explanation for the delay.

12.  Regarding his renewed application for leave to appeal, in considering whether to extend time for appealing against the refusal of leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

13.  The applicant was more than two months late when he made the application for extension of time to the Judge. This is a significant delay. He stated in the present summons that the delay was due to closure of the court registry as a result of Covid situation. We do not accept this explanation as there was no closure of any court registries in the period after the Judge’s refusal of his application in July 2021. Accordingly, the applicant has to show that his intended appeal has a real prospect of success.

14.  In assessing the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

15.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

16.  The applicant did not provide any ground in support of his intended appeal in either the summons or the affidavit, other than stating that his life is under danger.

17.  In his written submission, the applicant set out his personal and family background, and made the following points:

(1)  Udoka wants to eliminate the applicant as he witnessed Udoka’s killing of Eze. Hence, the applicant fled to South Africa and after discovering that Udoka could locate him he came to Hong Kong.

(2)  The applicant faced persecution risk as his country is going through insurgency with terrorism and maladministration of the government. Apart from Boko Haram, there are also the Islamic States West African Province, Fulani Herdsmen and other unknown gunmen and kidnappers terrorising the country. Banditry, kidnapping and extra-judicial killings are prevalent.

(3)  The Igbos tribe, to which the applicant belongs, is being targeted and persecuted because its members are predominantly Christians. The Muslims who now rule and control the country are planning to Islamize the country, and many young people who protested were killed. The applicant is a member of a political movement group of the Igbos called Indigenous People of Biafra (“IPOB”). His right under Article 2 of the Hong Kong Bill of Right Ordinance should be protected.

(4)  The Director assessed his case based on country of origin information derived from Facebook, which is not reliable. The Court should do some study of Nigeria and its current situation and should disregard the Facebook information.

(5)  The applicant requested for time to await the outcome of the election in Nigeria in May 2023.

18.  For the following reasons, we are of the view that the matters put forward by the applicant have no merits:

(1)  The reasons and basis for his fear of harm advanced in the written submission have gone beyond those stated in the claim made to the Director and in the appeal before the Board. Notably, the assertion that he is a member of IPOB is not only new, but is contrary to his statement to the Director and the Board that neither he nor his family members have any political affiliation. These new assertions had not been considered by the Director or the Board. Neither were they raised in the Form 86 or the accompanying affidavit. As a matter of procedure, it is not open to the applicant to raise new grounds on appeal, especially when they are fact sensitive.

(2)  More importantly, assessment of credibility, country condition and risks of harm is a matter for the Director and the Board, who are the primary decision makers. It is not the role of the Court in a judicial review to assess the country condition, or to reconsider the credibility of the claim or the risk of harm that an applicant faces. Unless it can be demonstrated that the decision makers had committed errors of law, acted irrationally or there was procedural irregularity in the decision-making process, the Court could not judicially review their decisions.

(3)  The Board had, for the reasons it gave, rejected the primary facts underlying the applicant’s claim as being not credible and unreliable. Both before the Judge and in this application, the applicant had not pointed to any error in the Board’s assessment and finding in this regard.

19.  We have separately considered the Board’s decision. We do not discern any legal errors, irrationality or procedural irregularities. We agree with the Judge that the intended judicial review has no prospect of success, and the Judge was correct in refusing to give leave to apply for judicial review.

20.  In the circumstances, the applicant’s intended appeal against the Judge’s refusal of the application for leave to apply for judicial review has no prospect of success. This being the case, it would be futile to extend the time to appeal. Accordingly, we dismiss the applicant’s summons filed on 19 May 2022.