OZOUDE KENNETH GINIKACHUKWU v. DIRECTOR OF IMMIGRATION DEPARTMENT

HCAL 310/2018

[2020] HKCFI 280

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 310 of 2018

 Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 16 November 2017 refused; and

2.  leave to apply for Judicial Review dismissed.

It is further directed that:

3.  if the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

4.  when filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

5.  the court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

6.  if the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

7.  liberty to apply.

Observations for the Applicant:

1.  The Applicant is a 51-year-old national of Nigeria who last arrived in Hong Kong on 5 December 2009 with permission to remain as a visitor up to 19 December 2009 when he did not depart and instead overstayed until he was arrested by police on 29 April 2012. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Nigeria he would be harmed or killed by his creditor for failing to repay his loan and/or by the terrorist group Boko Haram on his creditor’s instruction.  After his torture claim was rejected, he then raised a non-refoulement claim for protection on the same basis.  He has been released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Lagos, Nigeria.  After leaving school he started working in business trading, and in 2006 he formed a business with a partner trading in mobile phones in Lagos.

3.  In 2009 he borrowed US$22,000 from a local money lender for purchasing goods from Hong Kong, which he did in his trip to Hong Kong in December 2009, but after shipping the goods to Lagos, he was unable to contact his business partner, and after some time he was told by his brother that his business partner had disappeared with all the goods and capital that his business in Lagos had to be closed down.

4.  The Applicant then called his creditor in Nigeria and told him what happened and that without his business he would not be able to repay his loan anytime soon.  Upon hearing it his creditor became furious and threatened to kill him if he failed to repay his loan.  As his creditor was influential with political connections, and that he also came from the same northeastern part of Nigeria which is the stronghold of the terrorist group Boko Haram,he feared that his creditor may be able to get Boko Harm involved in tracking and killing him, he was therefore afraid to return to Nigeria and overstayed in Hong Kong, and upon his arrest by the police he raised his torture claim, and when it was rejected by both the Immigration Department and the Torture Claims Appeal Board (“the Board”), he then raised a non-refoulement claim for protection, for which he later completed a Supplementary Claim Form (“SCF”) on 9 March 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 15 July 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the remaining applicable grounds except his torture claim which include risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“HKBOR”) (“BOR 3 risk”),and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

6.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his creditor or Boko Haram to the Applicant upon his return to Nigeria as low due to the absence of any past ill-treatment from them, that the only evidence of threats from his creditor was made on the telephone when his creditor merely tried to force him to repay his loan, while there is absolutely no evidence other than the Applicant’s own speculation of any involvement of Boko Haram,that it was in any event a private monetary dispute between the Applicant and his creditor without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”)show that reasonable internal relocation alternatives are available in Nigeria with a large population of 181 million people spread across a vast territory of more than 923,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with work experience to move to other part of Nigeria away from his home district or the northeastern part where it would be difficult if not impossible for his creditor or Boko Haram to locate him.

7.  By a Notice of Further Decision dated 18 July 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

8.  By then the Applicant was already in the process of appealing to the Board against the earlier decision of the Director, the notice of which was filed on 29 July 2016,and for which he attended an oral hearing on 4 October 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board. On 16 November 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.  In its decision the Board accepted that the Applicant may have borrowed money from his creditor but rejected his assertions of threats from his creditor over the repayment of the loan, that his claim of being at risk from Boko Haram was entirely fanciful, and that with reasonable internal relocation available within Nigeria that it would not be unreasonable for the Applicant to safely move to a different part of Nigeria where he would be able to re-establish himself with his past work experience without any fear of risk of harm from his creditor that his non-refoulement claim for protection failed on all applicable grounds. 

10.  On 27 February 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form, and in his supporting affidavit of the same date he merely attached copies of those decisions and other documents from his hearing bundle used in his appeal before the Board. 

11.  The Applicant was however also late with his application, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

12.  As the last day of the three-month period for the Applicant to file his Form 86 fell on 16 February 2018, he was therefore late by 11 days with his application, for which he did not provide any explanation in his said affidavit, nor did he request for any oral hearing for his application.  As such I do not accept that he has provided any reason for his delay, although 11 days cannot be considered as significant given the fact that he was by then no longer legally represented by DLS.

13.  As for the merits of his intended application, as already noted the Applicant has not put forward any grounds for his intended challenge, nor has he identified any error of law in the decisions of the Director or the Board or any procedural unfairness in the process of his claim before them, and in the absence of which I do not find any reasonably arguable basis to challenge the finding of the Board.

14.  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 an 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 them who 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. 

15.  The fact is that it has been established by both the Director and the Board in their respective 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 to other part of Nigeria, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

16.  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.

17.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his delay, I refuse to extend time and accordingly dismiss his leave application.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1