RAYMOND PROMISE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1370/2019

[2024] HKCFI 1298

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1370 of 2019

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

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

1.   The extension of time for the application for Judicial Review be refused; and

2.   The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 18 August 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).  The deadline for filing his appeal is 18 November 2017.  His application filed on 21 May 2019 is late for more than 1 year and 5 months.  This issue will be dealt with below.

2.  The applicant asked for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court, he appeared before the Court on 8 April 2024.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant is a national of Nigeria.  He has a history with the authorities in Hong Kong and a swaying back and forth intention to seek asylum.  He was first arrested by the police on 3 August 2004 for being an illegal immigrant and, although he submitted a refugee application via the United Nations High Commissioner for Refugees, this was subsequently withdrawn by him on 15 September 2004.  He was therefore repatriated to Nigeria on 16 October 2004.  His last arrival in Hong Kong was on 20 June 2009 as a visitor under another identity (Ibrahima Diallo) and another nationality (Guinea).  He did not depart upon the permitted deadline and became an overstayer.  He was again arrested by the police on 28 July 2009 and lodged a torture claim on 30 July 2009.  Similar to his previous conduct, he again sought a withdrawal of his torture claim on 12 April 2012, but later attempted to re-open the same while being incarcerated on 27 June 2012.  However, he failed to submit a completed torture claim form to the director and hence, the Director treated his torture claim as withdrawn on 14 December 2012.  On 19 March 2013 and 6 April 2013, he applied for non-refoulement protection, which he again sought to withdraw on 28 July 2015 after he made a dependent visa application to join his local wife in December 2014.  However, the Director received two letters from the applicant to re-open his non-refoulement claim on 14 October 2015 and 4 November 2015, which was ultimately acceded to by the Director on 14 January 2016.  His dependent visa application was refused on 21 April 2016.

5.  In short, the applicant’s claim is on the basis that he would be harmed or killed by his paternal uncle (Benjamin Agwunobi) due to a land dispute. According to the applicant, he claimed that when his father passed away in around 1977, the land owned by his father ought to have been inherited to him as he was the only male descendant.  However, Benjamin occupied the land after his father’s death and the applicant had to stay with his mother’s friend after she passed away when he was five years old.  Thereafter, he was forced to work as a child labourer and severely beaten by another relative (Sabastine Asunobi) during his childhood.  Some of the ill-treatment by Sabastine included whipping and accusing the applicant of false crimes, thereby humiliating him in public.  When he was 24 years old, the situation worsened to the extent that he was almost executed by Sabastine due to a false charge of theft.  However, he was saved by two individuals (Oga Joe and Oga Ben) who set him free upon hearing his torment.  In 2004, he decided to leave Nigeria as he could no longer tolerate the danger from Sabastine and Benjamin.  He therefore made arrangements to arrive in Hong Kong.  Details of his claim are set out at [6] of the Notice of Decision dated 24 June 2016 by the Director (the “Director’s First Decision”).

The Director’s Decisions

6.  The Director considered the applicant’s claim in relation to the following risks:

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

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.  By way of the Director’s First Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that: (i) firstly, the conduct of the applicant was inconsistent with someone seeking asylum as he did not seek non-refoulement protection when he last arrived in Hong Kong as a visitor [28]; (ii) he was able to work in Nigeria after he was repatriated from Hong Kong 2004 and there was no problems encountered [25]; (iii) there was no real risk of danger from Benjamin or Sabastine as they had plenty of opportunities to kill him if there was indeed a real intention to take the land, yet they chose not to do so [20]; (iv) state protection was available [31] – [34]; and (v) internal relocation was also available and reasonable [35] and [36].

8.  For reasons set out in the Notice of Further Decision dated 5 May 2017, the Director also found that the applicant’s right to life would not be violated and thus dismissed his claim on BOR 2 risk (the “Director’s Second Decision”).  For the sake of convenience, the Director’s First Decision and the Director’s Second Decision will be referred to collectively as the “Director’s Decisions”.

The Board’s Decision

9.  The applicant appealed the Director’s Decisions to the Board.  On 19 May 2017, the Board conducted an oral hearing for his appeal, during which he elected to give evidence.

10.  In essence, the Board rejected the factual matrices of the applicant’s claim, namely it was not satisfied that the land dispute or the threats from Benjamin or Sabastine ever existed [59].  The applicant was not able to even pinpoint the location of the alleged land purportedly inherited from his father, nor was he able to demonstrate he had taken any steps to identify the land [94] and [95].  He further could not explain why Benjamin would need to kill him if Benjamin has been occupying it for some four decades [97].  He also deposed, for the first time at the hearing, that he was threatened when he was repatriated in 2004.  However, no explanation for this discrepancy against his written record was given [100].  The Board also noted the behavior of the applicant, ie his repeated withdrawal and reinstatement of his non-refoulement claim, cast further doubt on the genuineness of seeking asylum [102] – [107]. Having considered the evidence, the Board concluded he was a mendacious witness and there was no credence attached to the alleged land dispute nor to the threats from Benjamin [108].

11.  In assessing the individual grounds of non-refoulement protection, the Board found there was no real risk of the applicant under Persecution risk [110] – [112], BOR 2 and 3 risks [113] and Torture risk [114] and [115].  In light of this, it was unnecessary for the Board to consider the issue of internal relocation [116]. 

12.  For the above reasons, the Board rejected the applicant’s appeal and confirmed the Director’s Decisions.

Application for leave to apply for judicial review of the Board’s Decision

13.  The applicant has filed Form 86 dated 21 May 2019 for leave to apply for judicial review of the Board’s Decision.

14.  In the applicant’s affidavit in support of his application, the applicant attached a copy of the Board’s Decision and the Director’s Decisions without setting out any specific ground.

DISCUSSION

15.  As mentioned in paragraph 1, this application is late.  In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (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.  He has given no explanation for his delay.  Nevertheless, I shall first consider the merits of the applicant’s case.

16.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal.  The Court will not usurp the fact finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  Before me, the applicant said that he did not consider that the Board was wrong in its decision.  However, he submitted that he is now married in Hong Kong with 3 children, respectively 8 years old, 3 years and 4 months old.  Hong Kong is his home; and if he returns to his country, he may be politically tortured.

18.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …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.”

19.  The Board, for the reasons stated in paragraph 10 above, rejected his evidence on the facts of his claim and found that there was no evidence to show that the applicant will be subjected to the risks as claimed if he returns to his country.  There is no valid ground from the applicant to challenge the Board’s Decision.  There is no reason that this Court should interfere with the Board’s Decision.

20.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

21.  I refuse to extend time to the applicant to apply for leave for judicial review of the Board’s Decision.  Accordingly, I dismiss his 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