CHINEDU EMMANUEL ABALOGU v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2693/2018

[2021] HKCFI 1384

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2693 of 2018

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;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 6 December 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).  The application is late as Form 86 was filed on 27 November 2018.  I shall deal with this issue below.

2.  The applicant did not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

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

The applicant

4.  The applicant is a citizen of Nigeria.  He came to Hong Kong on 31 January 2011 as a visitor.  He overstayed and was arrested by police on 2 May 2013 for overstaying and using an identity card relating to another person.  He was charged, convicted and sentenced to 15 months’ imprisonment.  He raised non-refoulement by two written significations respectively dated 24 October 2013 and 14 November 2013.

5.  He claimed that if refouled, he would be harmed or killed by his boss, Oga Fabros (“OF”) because he had lost USD 1,000,000, which his boss had given to him for payments of goods during his trip to Hong Kong in February 2011.  Moreover, OF also accused him of being responsible for the deaths of his only son and youngest daughter because he was an Osu bringing evils to him.

6.  He inherited his status as an Osu from his family.  An Osu is, under the traditional belief in Nigeria, one owned by deities and considered as “living sacrifice”.  OF accepted him as an apprentice in 2007.  Shortly after he joined the business, his boss’s only son and youngest daughter passed away in hospital.  In 2010, OF assigned him to Hong Kong for purchase of some commodities.  He gave him US1 million for payment of the goods. However, he was cheated by two Igbo businessmen whom he met on the plane and they had stolen his bag containing the money.  He reported to his boss.  His boss was furious.  He also told the applicant that he was informed that the applicant was an Osu.  He accused the applicant of not disclosing his status to him and for that status, he lost his children.  OF said the he wanted his life for his loss if he returned to Nigeria.  Details of the incidents are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decisions

7.  The Director considered his application in relation to the following risks:

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

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

8.  By Notice of Decision dated 20 June 2016 (“the Director’s Decision”) and Notice of Further Decision dated 11 July 2017 (“the Director’s Further Decisions”), the Director refused his claim for the reason that his claim was not substantiated.  The Director found that the level of risk of being harmed or killed by his boss if he returned to Nigeria was assessed to be low [13]; that state protection was available to him [20] and internal relocation was an option open to him [21].  In the Director’s Further Decision, the Director found that he failed to establish a personal and real risk of being arbitrary deprived of his life in violation of BOR 2 if he returned to Nigeria [6].

The Board’s Decision

9.  The applicant appealed against the Director’s Decisions.  He attended the hearing before the Board on 26 October 2017.

10.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decisions for the reason that it did not believe the facts of his case.  The Board’s reasons are set out below.

(1)     At the hearing, despite being asked several times on what his boss had said to him, he did not mention he was accused of being responsible for the deaths of his boss’s children. [40]

(2)     The Board, for the reasons given in paragraphs 41-43, did not believe that his boss had given one million US currency to him to deal with his business in Hong Kong since the applicant is unable to read or write. [45]

(3)     The Board rejected his claim that he was threatened with death should he return to Nigeria. [46]

(4)     The Board did not accept his claim of fear of harm by his former boss or persons associated with him should he return to Nigeria. [47]

(5)     The Board was not satisfied that he had established that there were substantial grounds which supported the conclusion that he would face a real risk of ill-treatment as claimed if he returned to Nigeria. [48]

Application for leave to apply for judicial review

11.  The applicant filed Form 86 on 27 November 2018 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, he said that his enemies would kill him; that he had married in Hong Kong and that if he returned to Nigeria, his enemies would also kill her.

DISCUSSION

13.  As mentioned in paragraph 1, this application is late.

14.  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. I shall first consider the prospect of the intended appeal.

15.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

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

“13.… …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.”

17.  His grounds in support of this application do not assist his application.  He has no factual basis in support of his claim as the Board had rejected his evidence on the facts.  As to his wife’s situation, the Director is not duty bound to take into account the various rights relied upon when exercising his discretion to refuse permission to stay to the applicant since such rights are disengaged by section 11 of the Ordinance.  See Comilang, Milagros Tecson & others v Director of Immigration [2019] HKCFA 10 §90.  Furthermore, this ground was never raised before the Board.  The Board has no duty to make investigation into it without the applicant raising it and it should not be considered by the Court at this stage.  See Nupur Mst v Director of Immigration [2018] HKCA 524 §14(5).

18.  The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19.  There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

20.  I therefore refuse to extend time to the applicant to apply for leave to apply for his intended judicial review.  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