OBIAGWU OLUCHUKWU CHRISTIAN v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL985/2018

[2019] HKCFI 309

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 985 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

(1)  An extension of time for the application for leave to apply for judicial review of the decisions of Torture Claims Appeal Board dated 7 March 2017 and 8 September 2017 be refused; and

(2)  Leave to apply for judicial review be dismissed.

It is further directed that:

(1)  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;

(2)  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;

(3)  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;

(4)  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

(5)  Liberty to apply.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.  This is the applicant’s application for leave for judicial review against the decisions of the Director of Immigration (“the Director”) and the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) respectively.

The applicant

2.  The applicant is a Nigerian, who came to Hong Kong as a visitor on 23 October 2008. He committed robbery shortly after arrival and was convicted and sentenced to imprisonment for 10 years. He lodged his non-refoulement claim on 26 November 2008 on the ground that he would be harmed by some unspecified cult people because he had reported a case pertaining to them to the police. Also he claimed that he had been harassed by the police for protection money. Lastly, he claimed that he would be subject to double jeopardy as Nigerian government would punish him for committing crime in Hong Kong and he would be subject to imprisonment in Nigeria.

The Decision and Further Decision of the Director (“the Director’s Decisions”)

3.  The applicant’s application was processed by way of a screening process by the Director on the following issues:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture Risk”);

b.  risk of right to life and risk of torture or cruel, inhuman or degrading treatment or punishment under Articles 2 and 3 of Section 8 of the Hong Kong Bill of Right Ordinance, Cap 383 (“BOR 3 Risk”); and

c.  risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“RC”) (“Persecution Risk”).

4.  By Notice of Decision (“the Director’s Decision”) dated 28 May 2015, the Director rejected his application. The Director had set out his reasons in his Decision.

5.  The applicant appealed to the Board.

6.  On 24 August 2016, the applicant appeared before the Adjudicator.

7.  By Decision dated 7 March 2017 (“the Board’s Decision”), the Board rejected the applicant’s appeal and confirmed the Director’s Decision.

8.  The Adjudicator found that the applicant was not a reliable witness, taking into consideration of the factors under section 37ZD of the Immigration Ordinance (“the Ordinance”) that the applicant did not raise the claim for non-refoulement at the first available instance; that he had committed robbery shortly after his arrival in Hong Kong and that there being no explanation why he should come to Hong Kong instead of relocating somewhere else in his own country. See §§32 to 35 of the Board’s Decision.

9.  By letter dated 23 March 2017, the Director invited the applicant to submit additional grounds in relation to the Hong Kong Bill of Rights (“HKBOR”) under Article 2 (“BOR2 Risk”).

10.  On 6 April 2017, the applicant submitted the additional facts in support of his application.

11.  By Notice of Further Decision dated 26 April 2017 (“the Director’s Further Decision”), the Director rejected his application on the further ground of BOR2 Risk.

12.  On 12 May 2017, the applicant appealed to the Board against the Director’s Further Decision.

13.  The Adjudicator of the Board considered that it would not be necessary to hold another hearing for the applicant. He made his decision (“the Board’s Further Decision”) on the paper and rejected the applicant’s appeal on the Director’s Further Decision. See §§4 & 8 respectively.

Application for leave for judicial review

14.  By Form 86 dated 31 May 2018, under Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant applied for leave for judicial review of the decisions of the Director and the Adjudicator of the Board respectively, asking for an Order of certiorari to bring up and quash their respective Decisions and Further Decisions.

15.  In his affirmation in support of his application dated 31 May 2018, the applicant relied upon the grounds which were set out in an enclosure annexed with his Form 86:

(1)  the Director failed to maintain high standard of fairness;

(2)  the Director did not appreciate state acquiescence and the collusion between the police and the political circles;

(3)  the Director had selected the Country of Origin Information that suited his pre-conceived conclusion;

(4)  the Adjudicator failed to make sufficient enquiry before making the determination;

(5)  it was wrong for the Adjudicator to ask for evidence from the applicant because he was being detained in the centre; and

(6)  the Adjudicator did not give the applicant sufficient chance to arrange relevant evidence to support his case.

DISCUSSION

The Director’s Decisions

16.  In my view, the applicant is not entitled to apply for judicial review of the Director’s Decisions without exceptional circumstances.  In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decisions and this Board has wider power than this Court to make investigations in the matter. The Board had heard his appeal and made its Decisions.

17.  Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.

18.  For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decisions.

The Board’s Decisions – application out of time

19.  Under Order 53, rule 4(1) RHC, the applicant has to take out his application for leave to make an application for judicial review within 3 months from the date when the grounds for the application first arose.

20.  The applicant is out of time for making his application for leave for judicial review of the Board’s Decision (dated 7 March 2017) or the Board’s Further Decision (dated 8 September 2017). In accordance with the decision of the Court of Appeal in Kwok Cheuk Kin v Leung Chun Yin [2018] HKCA 419, CACV 110/2017 and CACV 162/2017, 23 July 2018, his application cannot proceed without this Court granting him an extension of time. See §28.

21.  The applicant has not made an application for extension of time. Nor had he given any good reason for this Court’s consideration.

22.  The consideration of whether time should be extended for the applicant to take out this application should be the same as held by the Court of Appeal in Khan Mohammad Shadab [2018] HKCA 897, CAMP 75/2018, 4 December 2018, namely, (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.

23.  This Court considers that there is no reasonable chance of success for the intended appeal for the reasons below.

24.  The applicant appeared before me in the hearing. He confirmed that he was legally represented and had interpreters at the screening. He had an interpreter for the appeal hearing before the Board. He understood all the questions put to him by the Immigration officer and the Adjudicator and his answers to the questions are all true and correct. Furthermore, he said that he had no complaint against the Immigration officer or the Adjudicator of the Board.

25.  Grounds (1), (2), (4) are the applicant’s opinion, not supported by any evidence. They fail.

26.  Ground (3) is a matter of fact to be found by the Adjudicator. This ground cannot sustain.

27.  The Court of Appeal held in Ali Haider CACV8/2018, [2018] HKCA 222 at §13: “Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision makers.”

28.  At §14 of the same judgment, the Court of Appeal further said: “Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.”

29.  As to ground (5), the Adjudicator was entitled to ask him to adduce evidence to prove his case as the burden is on him. If he had any difficulty, he should tell the Adjudicator for his determination. This ground fails.

30.  As to ground (6), the applicant was unable to identify what evidence he would like to arrange for his case. He had no complaint against the Adjudicator. This ground fails too.

31.  I find that the applicant was unable to show that he had reasonable chance of success in his judicial review.

CONCLUSION

32.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to extend time for the applicant to take out this application. Accordingly, I dismiss his application.

33.  It is further directed that:

a.  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;

b.  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;

c.  The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondents and whether the application for leave to appeal shall be determined on paper;

d.  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

e.  Liberty to apply.

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