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HCAL 494/2021
[2021] HKCFI 3176
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 494 of 2021
BETWEEN
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Abdou Issaka |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative
Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge P. Li:
1. Extension of time for application for leave to apply for Judicial Review be refused; and
2. Application for leave to apply for Judicial Review be dismissed.
Observations for the Applicant:
1. The applicant last came to Hong Kong on 16/8/2015.[1] He was refused entry and repatriated back to Macau. He came again on 22/8/2015. He was allowed to stay until 25/8/2015. Subsequently, he was arrested by the police on 19/11/2015 for overstaying. He lodged the non-refoulement claim in this case on 20/11/2015.
2. He feared that he might be harmed or killed by his uncle if he returned to Niger. His uncle had a land dispute with his father.
Background
3. The applicant was born in Niger on 1/1/1978. He had education for 10 years. His father and brother were deceased. His mother lived in Nigeria.
4. His grandfather had left 8 pieces of land to be shared equally by his father and his uncle. Since childhood, he knew his father and his uncle had a long standing dispute over the land. However, it had not involved violence. He knew very little about the land.
5. One morning in July 2012, he was woken up by some loud noise outside his house. His mother rushed into his room and told him to flee immediately through the backyard. They eventually took a 11-hour-bus trip for Nigeria. He passed the immigration checkpoint without any problem. On the way, his mother told him that his father and brother were shot dead by his uncle’s men that morning. It was because of the land dispute.
6. He and his mother stayed in Aba City for about 10 months. His mother supported him financially. His mother urged him to travel to other countries for long term safety. She would support him financially.
7. About May 2013, he returned to Niger for renewing his passport. He encountered no problem going through official immigration checkpoints. He had stayed in exile at various places including China.[2] He had been to Hong Kong for 10 times before he was refused entry in August 2015. He only learned about the non-refoulement protection scheme after he was arrested in November 2015.
8. He last contacted his mother in February 2018. His mother told him not to return to Niger. He was not updated about the land dispute. He thought his uncle must have tried to locate him. He asserted that Niamey and Zinder were not safe cities as his uncle would be about to locate him through his political network. The government was corrupt in Niger. There would not be any protection.
The Decision of the Director
9. The Director rejected his claim on 18/5/2018. The Director concluded that the risk of harm was low. The reasons were: [3]
(a) The applicant could travel to various places from 2014 to 2015. He had never suffered any physical or mental ill-treatment which amount to a minimum level of severity.
(b) There was no evidence that the applicant had formally inherited the land since the death of his father. There was no reason for his uncle to kill him.
(c) He could stay safely from his uncle since he fled to Nigeria. There was no evidence that his uncle had been taking steps to locate him. He could enter and leave Niger without problem. There was no foreseeable risk of harm to him.
(d) There was no evidence about the political affiliation of his uncle. In fact, he knew very little about the background of his uncle. There was no evidence of harassment from his uncle since the incident in 2012. It was unlikely that his uncle would be able to locate him in Niger.
(e) He had been to Hong Kong for 10 times before he was refused entry in August 2015. Had he been under such risk to his life as asserted, he must have sought protection earlier. His conduct was inconsistent with a genuine fear. This affected his credibility.
10. The Director pointed out that some COI revealed that there were persistent problems of corruption and inefficiency in the police. The government was not effective in enforcing the law. However, the Niger government had taken steps to improve effectiveness and protect human rights. The UNODC[4] had collaborated with the government to train officers in anti-corruption programs. There were NGO investigating alleged human rights abuses. They issued reports which were considered by the government. Senior civil servants and police officers were punished for corruption. There was no systemic police misconduct. The Director found that the Niger government were able to discharge its duties and provided reasonable protection to the people.
11. Niger was a big country with a population 19 million as of 2017. The law in Niger permit internal movement. Zinder and Niamey were viable alternative for the applicant. It would not be unreasonable for him to relocate within Niger. It was difficult for his uncle to locate him.
12. The Director rejected his claim on all grounds.[5]
The Decision of TCAB
13. The adjudicator held a hearing on 27/7/2018 by the remote official visit system. The applicant attended but alleged that he was unfit. The adjudicator requested for medical evidence and explanation within 7 days. There was no response. Subsequently, the adjudicator arranged another hearing on 21/9/2018. The applicant refused to attend shortly before the scheduled hearing. A written request for explanation was sent to the applicant but there was no response. The adjudicator decided to deal with the appeal in his absence.[6]
14. The adjudicator found that the factual basis of the applicant’s claim was not plausible. The main points were as follows:[7]
(a) The applicant alleged that he did not report the murder of his father and his brother to the police who were corrupt. They would not assist as he could not afford a bribe. The applicant provided no personal experience based on which he came to that conclusion. It was his speculation. It was a very strange decision that he only fled without reporting the deaths of his father and brother.
(b) The applicant and his mother fled in a hurry leaving behind their properties. There was no evidence how his mother could have supported him financially while in Nigeria. Again, his mother urged him to travel to other places with her financial support. However, there was no evidence about the source of funds. In fact, there was no evidence that he had ever worked in Nigeria.
(c) The applicant mentioned that he had stayed in various countries[8] after renewing his passport in May 2013. The applicant had not offered any reason for staying in those countries. There was no evidence how her mother could have supported him in all these trips.
(d) All along since 2012, the applicant was under the threat of being killed by his uncle. He however did not apply for non-refoulement protection during his previous visits to Hong Kong before August 2015. Further, if he was not aware of any protection scheme during the past visits as asserted, how could he conclude that Hong Kong would be a safe place for him.
(e) The applicant knew very little about the background of his uncle despite the land dispute had been escalating in the past for years. At the time when the dispute escalated to the murders, he was 34 years of age. He should be able to give more detail other than some vague allusions.
(f) The applicant asserted that his uncle was powerful. However, he was able to enter and leave Niger through official channels without any problem.
(g) The applicant had never tried to verify the murder of his father and his brother. He had not reported the crime to any authorities in Niger and Nigeria when he was safe.
15. The adjudicator rejected his claim on all grounds on 3/4/2019. [9]
Judicial Review
16. The applicant filed the leave application for judicial review on 9/4/2021. He was out of time for 21 months. In his affidavit, the applicant asserted that the problem in Niger had not been resolved. His life was still in danger.
17. In a leave application, this court would consider whether there is any error of law or procedure. Whether the decisions of the TCAB was reasonable. This court would not interfere with the finding of facts unless it is obviously wrong.
18. The adjudicator had arranged 2 hearings for the applicant. He had not made use of the opportunities to furnish further information. He provided no reason for his conduct. I agree with the adjudicator that the appeal should be dealt with in his absence.
19. The adjudicator had analyzed the evidence in detail. He correctly pointed out the doubtful points in the evidence filed by the applicant. The adjudicator found that the applicant’s story was not plausible and rejected the factual bases of his claim.
20. In my view, the adjudicator’s conclusion is reasonable. There is no error of law and procedure. The intended judicial review is not reasonably arguable.
21. The applicant is out of time in filing the leave application by about 21 months. The applicant should have applied for extension of time. He did not provide any explanation for the delay. In considering whether there is good reason for the delay, I have to consider the length of the delay, the reasons for the delay, the merits of the substantive application and the prejudice to the putative respondent if time extension was granted. [10]
22. The delay is substantial. There is no explanation. It is undue delay. The intended judicial review is of no merit. In the circumstances, there is no good reason to extend time for the leave application.
Conclusion
23. I refuse to extend time for the leave application. I also refuse leave for the intended judicial review.
Dated the 2nd day of November 2021.
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(Mike Mak) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant / the Applicant’s solicitors on
2 November 2021:
Abdou Issaka
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 2 November 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11762/18/5/347/NR13
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1334/18
(formerly RBCZ 14285/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] According to the immigration record, he had visited Hong Kong for 10 times since 25/12/2014.
[2] He had stayed in Gambia, Zimbabwe, Nigeria, Dubai, Hong Kong and Macau.
[3] Decision of the Director dated 18/5/2018, §§13—26.
[4] United Nations Office on Drugs and Crime.
[5] Decision of the Director dated 18/5/2018, §§27—40.
[6] Decision of the TCAB dated 3/4/2019, §§1—5.
[7] Decision of the TCAB dated 3/4/2019, §§41—50.
[8] See footnote 2.
[9] Decision of the TCAB dated 3/4/2019, §§51—55.
[10] H v Director of Immigration [2020] HKCFA 22, para. 37; AW v Director of Immigration CACV 63/2015, §§26—27.
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