EZEABARA CHINEDU v. THE ADJUDICATOR OF THE NON-REFOULEMENT CLAIMS PETITION OFFICE APPOINTED TO DETERMINE THE APPLICANT’S PETITION AND ANOTHER

HCAL 605/2018

[2019] HKCFI 440

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 605 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

1.  an extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board made on 25 May 2017 refused; and

2.  leave to apply for Judicial Review dismissed.

It is further directed that:

3.  if the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he/she must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

4.  when filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

5.  the court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

6.  if the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

7.  liberty to apply.

Observations for the Applicant:

1.  The applicant is a 38-year-old national of Nigeria who arrived in Hong Kong on 29 March 2009 with permission to stay as a visitor up to 12 April 2009 when he did not depart and instead overstayed until 14 November 2011 when he surrendered to the Immigration Department, and lodged a torture claim on the basis that if he returned to Nigeria he would be harmed or killed by his creditor for failing to repay his loan, and after his torture claim was rejected, he then raised a non-refoulement claim for protection on the same basis.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Onitsha, Anambra, Nigeria.  After leaving school he worked as a garment trader and in 2006 started his own garment business in Lagos, Nigeria.

3.  In early 2009, in order to purchase materials in Hong Kong, the applicant borrowed US$50,000 from Okafor, a wealthy and powerful man with political connections and influences in Lagos, with an agreement that the loan was to be repaid within one year at 10% interest rate but failing which the applicant was to be killed by his creditor.

4.  With the money borrowed from Okafor, the applicant travelled to Hong Kong on 28 March 2009, but shortly thereafter he lost his handbag containing the money of which he did not report to the police as he did not know how, and when he informed Okafor that he would not be able to repay the loan, Okafor became furious and threatened that he would carry out the term of their loan agreement to have the applicant killed if and when he returned to Nigeria.

5.  Thereafter Okafor would threaten his family to force the applicant to repay his loan, and fearing that he would be killed if he returned to Nigeria, the applicant therefore overstayed in Hong Kong and went into hiding until 14 November 2011 when he surrendered to the Immigration Department and raised his torture claim.

6.  In 2012 the applicant married a Hong Kong resident whom he later divorced in 2014.  Later in the same year he married another Hong Kong resident with whom he has a daughter.

7.  On 3 October 2013 his torture claim was rejected by the Immigration Department, when he then raised a non-refoulement claim for which he completed a Supplementary Claim Form on 14 September 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

8.  By a Notice of Decision dated 10 December 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on the then applicable grounds including risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“HKBOR”) (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

9.  In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from Okafor to the applicant upon his return to Nigeria as low due to the absence of past ill-treatment from him, that it was a private loan dispute between the two of them without any official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Nigeria with a large population of 181 million people spread across a vast territory of more than 923,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other part of Nigeria away from his home district where it would be difficult if not impossible for Okafor to locate him.

10.  By a Notice of Further Decision dated 25 October 2016 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

11.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 21 December 2015, and for which he attended an oral hearing on 9 November 2016 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 25 May 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.  In its decision the Board found the applicant’s evidence of his claim riddled with matters which were intrinsically unlikely such as the loan agreement that he would be killed if he failed to repay the loan, the causal loss of his money in Hong Kong and his failure to report the loss to the police because he did not know how, all of which the adjudicator found to be incredible and rejected his evidence of the loan, the loss of the money, and the threats made to him or his family, and concluded that there is no basis upon which the Board could make a finding that the applicant is at risk from a creditor if he is returned to Nigeria.     

13.  On 10 April 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in it he put forward the following grounds for his intended challenge:

(1)  that the Director and the adjudicator reached their decision wrongly in assessing his non-refoulement claim;

(2)  that their decisions were not fair or reasonable as required by the Wednesbury test;

(3)  that they failed to take into account that the right to life must be protected from extra-judicial killings which he may face if deported to his home country; and

(4)  that the adjudicator failed to give him sufficient time and opportunity to arrange relevant evidence for his non-refoulement claim as well as his appeal.  

14.  As held in Re Moshsin Ali [2018] HKCA 549, the decision of the Director is no longer susceptible to judicial review once an appeal to the Board has been pursued and that the Director’s decision has been superseded by the Board’s decision, and hence it is not open to the applicant to challenge the Director’s decision by way of judicial review. 

15.  As for the Board’s decision, by then the applicant was way out of time with his Form 86, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

16.  As the Board’s decision was made on 25 May 2017, the last date for the applicant to make his application fell on 25 August 2017 under the said rule, and hence when he filed his Form 86 on 10 April 2018, he was more than 7 ½ months out of time which must be regarded as a very substantial delay.   

17.  In considering whether to extend time the Court shall have regard to (i) the length of the delay; (ii) the reasons for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration & anor CACV 63/2015.

18.  The applicant did not provide any explanation in his supporting affirmation for his delay, but at the hearing of his application before me he explained that he was then being detained at the Castle Peak Bay Immigration Centre (“CIC”) and was therefore unable to file his Form within time, but the fact is that he did file his Form 86 and his supporting affirmation at the time when he was still being detained at CIC, and hence his detention cannot be accepted as a valid reason for his delay, and in the absence of any further particulars or elaboration from the applicant, I am not convinced that he has provided any good reason for such a substantial delay of his application.    

19.  As for any merits of his intended application, all of his grounds are just some broad and vague assertions containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable, or what relevancy were extra-judicial killings to his case, or how did the adjudicator fail to give him sufficient time or opportunity to present or produce his evidence in support of his claim or appeal.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and in fact even at the hearing of his application before me the applicant did not adduce any further evidence or argument for his claim other than a letter from his wife pleading for this court to re-consider his claim as she needed him to remain in Hong Kong to raise their daughter, a fact not at all relevant to his claim or to the matter now before me.   

20.  As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

21.  In the applicant’s case, the adjudicator rejected his claim based on adverse finding on his credibility for the careful and thorough analysis and reasoning set out in paragraphs 44 – 61 of the Board’s decision, and with the benefit of hearing him in evidence and his answers to questions put to him at the oral hearing.  In the absence of any error in that decision being clearly and properly identified by the applicant, the adjudicator was entitled to arrive at his findings against him on the basis of the evidence before the Board, and I do not find any of the grounds of the applicant reasonably arguable for his intended challenge. 

22.  Furthermore, even if his alleged fear of harm were real or substantial, the fact that it has been established by the Director in his decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nigeria, and which decision has been subsequently confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

23.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

24.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and in the absence of any good reason to do so I refuse to extend time for his late application, and accordingly his leave application is dismissed.

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