RE NWACHUKWU IYKE UZOMA

CAMP 47/2019

[2019] HKCA 863

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 47 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 928 OF 2017)

_____________________

_____________________

___________________

J U D G M E N T

___________________

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

Introduction

1.  By a decision dated 2 November 2018 (“the Decision”), Campbell-Moffat J (“the Judge”) refused to grant leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) dated 25 August 2017. 

2.  On 15 March 2019, the Judge refused to grant an extension of time to the applicant to appeal against the Decision (“the Leave Decision”).

3.  The applicant now renews the application for an extension of time to appeal against the Decision to this Court by way of a summons dated 27 March 2019.  Pursuant to the directions of the Registrar of Civil Appeals given on 28 March 2019, the applicant lodged his written submissions by affirmation on 9 April 2019.  The Registrar further directed that it is for this Court to decide whether to determine the application on paper.  We consider it appropriate to determine this application on paper and we do so accordingly.

Background

4.  The applicant is a national of Nigeria.  The Applicant came to Hong Kong on 6 January 2012 on the strength of an entry visit visa.  He was married to a Hong Kong resident on 29 January 2012 and applied for a dependant’s visa, which was subsequently cancelled because of the failure of the Applicant to provide sufficient information.  He had since re-married and re-applied for dependent visa.  The applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 23 May 2014.  The applicant’s claim was based on his alleged fear that if he were to return to Nigeria, he would be harmed or even killed because of the fight between two political parties by which people in military uniform would shoot randomly at innocent people.

5.  By a Notice of Decision dated 21 April 2017, the Director decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk, the BOR 3 risk, the persecution risk, and the torture risk. 

6. The applicant appealed to the Board. After the hearing on 16 August 2017, the Board dismissed the appeal on 25 August 2017 (“the Board’s Decision”). The Board found that the applicant’s claim at the appeal hearing were significantly different from those in his NRF and he also raised new claims that there was militant group targeting at his family. The Board did not believe that the applicant was targeted by militants in the past, if it was true, should be a significant event and should not be neglected in the NRF. The Board also did not accept that there was ongoing political turmoil and militant activity in his home town with reference of various country information reports, see [30] and [31] of the Board’s decision. Further, internal relocation would be a viable option. The applicant’s non-refoulement claim was not substantiated on all applicable grounds. 

The Judge’s Decision

7.  On 22 November 2017, the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision.  In his supporting affirmation filed on the same day, he did not provide any grounds of review and merely reiterated the background of his case as put before the Board.  

8.  On 2 November 2018, the Judge gave her decision refusing to grant leave to the applicant to apply for judicial review.  After summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [12] – [13] for her refusal to grant leave:

“ Conclusion

12. Despite the fact that the Applicant did not submit any grounds of review, I have considered the papers 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. There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

13. In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

9.  The applicant did not lodge any appeal in respect of the Decision within the 14-day time limit for appealing (which expired on 16 November 2018).  By the summons filed on 20 November 2018, he sought an extension of time to appeal against the Decision.  In the supporting affirmation, the applicant did not explain the delay as he sought to rely upon his underlying refugee claim and requested for a re-hearing of his case based upon the continuing situation in Nigeria and his marriage to a Hong Kong resident.  At the hearing, upon questioning by the Judge, the applicant explained that the four-day delay was as a result of his lack of knowledge of the legal requirement and the need to seek legal advice.  The applicant was encouraged to identify any complaint he might have against the Board’s decision or the Decision made by the Judge but he could not do so.

10.  By the Leave Decision, the Judge found that notwithstanding the minimal delay, the applicant’s underlying application was devoid of merit as he provided no grounds of review.  There was also no complaint against the Board’s decision nor the Decision to refuse leave.  Having considered all the evidence, the Judge found no prospect of success in the applicant’s intended appeal and refused the application for an extension of time to appeal, see [7] – [8] of the Leave Decision.

The Renew Application

11.  By the summons dated 27 March 2019, the applicant renewed the matter before us.  The applicant did not provide any grounds of his intended appeal and in his supporting affirmation, he merely repeated the background of his case as put before the Judge in his application for leave to apply for judicial review.

Legal Principles

12.  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.  An applicant who fails to do so cannot appeal unless extension of time to appeal is granted.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (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.  Even if the court does not accept that the applicant’s explanation for the delay is reasonable, the court should still examine if he has merit in the intended appeal, see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346. 

14.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this application, the salient principles are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  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, 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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A). 

Discussion

15.  In this case, we agree with the Judge that notwithstanding the small delay which we are prepared to excuse, there is nothing in the summons or the supporting affirmation which can possibly give rise to a valid ground of appeal.  Having reviewed the Board’s decision, the applicant’s case was rightly rejected as he failed to substantiate his case on all applicable grounds.  As explained, the assessment of the risk of harm and internal relocation are within the province of the Board.  The court will not interfere with such assessment unless they are reversible on public law grounds.  The Judge, after rigorous examination and anxious scrutiny, did not find any errors of law or procedural unfairness or irrationality that warrant the court’s interference with the Board’s decision.   We take the view that the Judge was plainly right in rejecting the applicant’s application.  

16.  For these reasons, 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 summons dated 27 March 2019 is dismissed accordingly.

17.  We also order that, pursuant to Order 59, rule 2A(8) of the Rules of the High Court (Cap. 4A), no party may request this determination be reconsidered at an oral hearing inter partes.