RE OBIAGWU OLUCHUKWU CHRISTIAN

HCAL 985/2018

[2019] HKCFI 1293

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 985 OF 2018

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D E C I S I O N

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1.  This is the applicant’s application for leave to appeal against my decision by way of Form call-1 dated 8 February 2019 (“the Court’s Decision”).

2.  The Court’s Decision was made where the applicant asked for leave for judicial review against the decisions of the Director of Immigration (“the Director”), who refused his non-refoulement claim application and the decisions of the Adjudicator of the Torture Claims Appeal Board/Non‑refoulement Claims Petition Office (“the Board”), who refused his appeal against the Director’s Decisions.

3.  However, the applicant was out of time for taking out the application for leave for the judicial review (“the said application”). In the same hearing, I dealt with the issue whether extension of time should be granted to him for the said application. Having considered the merits of his case and for the reasons given in the Court’s Decision, I refused to grant him extension of time. Accordingly, I dismissed the said application.

4.  Since my decision refusing to grant him the extension of time was an interlocutory decision, this Court had made an Order that if the applicant wished to appeal against my decision, he had to take out an application for appeal within 14 days from the date of the Court’s Decision. The applicant has now taken out the application for leave to appeal.

5.  In the applicant’s summons, he also asked for leave to advance new ground of appeal.

6.  According to the court’s record, the Applicant has not filed any affirmation setting out the grounds in support of his application. However, the applicant before me maintained that he had filed his affirmation on the same day when he filed the summons for this application, which is 14 February 2019.

7.  Since the applicant was unrepresented, I took a liberal approach and I allowed him to make oral submission to me as to the reasons in support of his application. However, he produced a 4-page written submissions together with a stack of articles on the subject that there is still no accountability for human rights violation in Nigeria.

8.  He said that the written submissions were prepared by himself without any assistance from anybody else and that he only obtained the said articles after the hearing before me. I shall deal with his submission and the said articles.

9.  In his submission, he said that the Adjudicator held that he was an unreliable witness because he did not ask for protection at the first available instance, he had committed robbery and there was no explanation why he should come to Hong Kong instead of relocating to somewhere else in his own country.

10.  He argued that the Adjudicator was in error because there was no definition for first available instance. He admitted that he had committed robbery shortly after he had arrived in Hong Kong. But he had paid his price by serving his term of imprisonment. The Adjudicator should not take it as his consideration to say that he was not a reliable witness. He agreed that he lodged the non‑refoulement claim shortly after his commission of robbery.

11.  Under section 37ZD(3) of the Immigration Ordinance, Cap 115, the Adjudicator was entitled to take his commission of robbery into consideration when he assessed his credibility. The sequence of facts should be considered in this way: the applicant first came to Hong Kong as a visitor on the strength of his Nigerian passport. He did not raise his claim for protection to the Immigration office in the first place. This would inevitably leave a doubt on the Adjudicator’s mind as to his true intent of coming to Hong Kong. Then he committed robbery. After he was arrested by police, he lodged his claim for non-refoulement. It would be logical for the Adjudicator to take the view that the real intention of the applicant of coming to Hong Kong was for economic reasons rather for avoidance of being harmed or killed in Nigeria.

12.  Viewed in this way, there is nothing amiss for the Adjudicator to take such view as he did, resulting that he did not believe the applicant’s evidence on the alleged facts of his case.

13.  The Court of Appeal has held that the finding of fact by the Board is final. Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, §42.

14.  As to the articles on the human rights issue in Nigeria, it appears that they are the updated version as it is dated November 2018. However, the Adjudicator had, in paragraph 19 of the Board’s first Decision, dealt with the human right issues in Nigeria. They are simply similar issues as in the updated materials. I had put this paragraph to the applicant. He agreed that he had raised the same issues before the Adjudicator in the appeal hearing.

15.  In the circumstances, I find that the applicant has no ground to support his application. As such, I dismiss his application for leave to appeal against the Court’s Decision to the Court of Appeal.