EGBOLIBE DANIEL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 374 /2022

[2023] HKCA 250

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 374 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2324 OF 2018)

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J U D G M E N T

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

1.  On 19 April 2022, Deputy High Court Judge K W Lung refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1].

2.  On 27 June 2022, the judge dismissed the applicant’s application for extension of time to appeal against the said decision as there is no merit in the intended appeal[2].

3.  On 23 September 2022, the applicant filed an application complaining of the result of the decision of the judge. In light of the Court of Appeal decision in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8, we shall treat this as a renewed application for leave to appeal out of time against the decision of the judge dated 19 April 2022.

4.  The applicant is a national of Nigeria. He is 53 years old. The applicant entered Hong Kong as a visitor on 22 July 2015 but he subsequently overstayed and was arrested on 9 April 2016. He applied for non-refoulement protection on 11 April 2016 on the basis that he would be harmed or killed by the Nigerian Army and the police due to his political affiliation in the Indigenous People of Biafra (“IPOB”), and by the Boko Haram for being a Christian and the son of a pastor.

5.  By a Notice of Decision dated 29 August 2017, the Director rejected the applicant’s claims on all then applicable grounds including torture risk[3], BOR 3 risk[4], BOR 2 risk[5] and persecution risk[6].

6.  The applicant appealed against the Director’s decision and hearings before the Board were held on 30 May 2018, 16 August 2018 and 18 September 2018. The applicant was legally represented at all material times and answered questions from the Board. It should be noted that pursuant to section 37ZC of the Immigration Ordinance, the Board enquired whether it should require the applicant to undergo a medical examination to ascertain his injures in light of his non-refoulement protection claims. However, the applicant confirmed that he did not wish to rely on medical evidence and he would only rely on documents and written statements.

7.  Upon its enquiry, the Board did not accept the applicant’s claim and rejected his evidence. It found that the evidence produced by the applicant, such as a letter from a Mr Nebeuwa who was a member of IPOB, was not reliable as Mr Nebeuwa only came to know the applicant after arriving in Hong Kong. The Board also found that the applicant’s evidence was generalised and lacked clarity, and in any event was inconsistent with the country of origin information (“COI”). It dismissed the applicant’s challenge against the COI, as it was extensive when reporting incidents in Nigeria. As for the injuries suffered by the applicant, the Board attached little weight to the same as the applicant insisted on not relying on medical evidence. The Board also did not accept that the applicant was facing harm from the Boko Haram in view of the totality of his evidence.

8.  In light of the above findings, the Board rejected the applicant’s claim on 11 October 2018.

The judge’s decision

9.  On 23 October 2018, the applicant applied for leave to apply for judicial review against the decision of the Board. The applicant did not provide any grounds in his application and in his affirmation in support, he simply stated he was not satisfied with the decision of the Board. As the applicant did not request for an oral hearing, the judge dealt with the matter on paper.

10.  After reviewing the Board’s decision with rigorous examination and anxious scrutiny, the judge did not find any error of law or procedural unfairness of the Board. The judge held that the findings of the Board were not in any respect open to challenge as Wednesbury unreasonable or irrational. Therefore, the judge concluded there is no prospect of success in the intended judicial review and refused the leave application on 19 April 2022.

Grounds of appeal

11.  The applicant did not provide any grounds of appeal in his summons or his affirmation in support, save that he repeated that his life is still in danger and complained that the decision of the judge was unfair. As for his written submissions, he again repeated the risk of being tortured and killed if he is returned to Nigeria.

Analysis and disposition

12.  In considering whether to extend time for appealing against a decision refusing 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.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The order was made on 19 April 2022. The applicant took out a summons for extension of time to appeal at the court below on 23 May 2022. He was late for about two weeks. However, the applicant did not provide any explanation for the delay.

14.  As the applicant’s delay is unexplained and unjustified, he must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

15.  In assessing the merits of the intended appeal, the court 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.

16.  The applicant’s submissions are almost entirely bare assertions, including the contents in his summons and affirmation in support. In any event, he failed to demonstrate that the judge was wrong in refusing to grant leave to bring judicial review.

17.  For the above reasons, there is no prospect of success in the applicant’s intended appeal. We refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 19 April 2022 and dismiss the summons filed on 23 September 2022.