OGBOZOR TOCHUKWU EUGENE v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1436/2018

[2021] HKCFI 2377

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1436 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 2 February 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). This application is late as it was filed on 23 July 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 Nigerian citizen. He came to Hong Kong as a visitor on 21 January 2008. He left Hong Kong for China on 4 February 2008 and returned to Hong Kong on the same day in the same status as a visitor. He overstayed and was arrested by police on 28 July 2014. He was referred to the Immigration Department. On 4 September 2014, he lodged his non-refoulement claim with the Immigration Department.

5.     He claimed that if refouled, he would be harmed or killed by the people from the Niger Delta Group. Shortly after his father had passed away, he received letters from an unknown man, who claimed to be of the Niger Delta Group, demanded 15 million Nigerian Naira from him. He did not have the money. Later, he received phone calls from this man, demanding payment of the money or his family or he would be kidnapped. He moved to live in other places such as Kano State, Kaduna State, Abuja State and Lagos. He was unable to get rid of the man, who was able to locate him. He had reported the matters to police, who only paid lip service that they would make investigations into the matter. But they did not make any arrest. He left Nigeria for Hong Kong in January 2008. In 2010, his mother was kidnapped and killed by the Niger Delta Group. He considers that the state is unable to provide him with any protection and that relocation is not possible because this Group has wide network. Details of the incidents are set out in paragraphs 5-44 of the Director’s Decision described below.

The Director’s Decision

6.     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”).

7.     By Notice of Decision dated 27 June 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that the level of risk of harm against him by the Niger Delta Group people was assessed to be low [50]; that state protection was available to him [68] and internal relocation was an option open to him [108].

The Board’s Decision

8.     The applicant appealed against the Director’s Decision. He attended the hearing before the Board on 19 October 2017.

9.     By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons as set out below.

(1)  The Board, having analyzed his evidence, found his evidence implausible [57], improbable [58], embellished and incredible [59] and speculative [60].

(2)  For the reasons above, the Board did not accept that the applicant was extorted by the Niger Delta Group of Niger Delta Militants after the death of his father and was targeted by this group or people associated with them over a period of seven years while in Nigeria. The Board found that the applicant was not a witness of truth and his claim regarding his experiences in Nigeria was not credible. [63]

(3)  The Board therefore did not accept the fundamental basis of the applicant’s claim that he faced any form of harm upon return to his home country. [64]

Application for leave to apply for judicial review

10.     The applicant filed Form 86 on 23 July 2018 for leave to apply for judicial review of the Board’s Decision.

11.     In his affidavit together with the exhibits, including his “Grounds of Appeal” to the Board, he repeated his claim of the facts and maintained that they were true.

DISCUSSION

12.     As mentioned in paragraph 1 above, this application is late. The Court of Final Appeal in H v Director of Immigration & AH v Director of Immigration [2020] HKCFA 22, 14, July 2020, Fok PJ held:

“39. … … a judge cannot proceed with an out of time application for leave to apply for judicial review without considering whether there is good reason to extend time for the making of the application, his decision on that particular issue is not a discrete decision separate to his decision whether or not to grant leave to apply for judicial review. … the aspect of delay is intrinsically bound up with the question whether leave to apply for judicial review should be granted… since the merits of the substantive application is one of the factors relevant to the question of whether there is good reason for extending time to apply (see [37(2)] above), it would be highly artificial to treat a decision on an extension of time application as separate and discrete from the decision to grant or refuse leave to apply.”

I shall consider the merits of the case.

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

14.     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.”

15.     The Board has given its reasons for its finding of the facts. His grounds in support of this application do not assist his application.

16.     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.

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

CONCLUSION

18.     I therefore refuse to extend time for 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