KENENNA CHIGOZIE CHUKWUJEKWU v. DIRECTOR OF IMMIGRATION

HCAL 169/2018

[2020] HKCFI 1166

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 169 of 2018

     Application for Leave to Apply for Judicial Review

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

Following:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 15 September 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 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 34-year-old national of Nigeria who arrived in Hong Kong on 28 October 2008 with permission to remain as a visitor up to 18 November 2008 when he did not depart and instead overstayed until 14 November 2009 when he was arrested by the police. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Nigeria he would be harmed or killed by the Islamic terrorist groups Oduduwa People Congress (“OPC”) and Boko Haram for being a Christian and/or persecuted by the Nigerian government for being ethnically a member of the indigenous Igbo people.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born in Lagos, Nigeria as ethnic indigenous Igbo and was raised by his parents as a Christian.  After leaving school he continued to live with his parents and siblings in Lagos and ran his own bakery shop.

3.  In about May 2008 he participated in a march by indigenous Igbo people in Orile,Lagos in protest against the Nigerian government over its past persecutions against the Igbo people when the government sent in the police and the military to fire tear gas and bullets to disperse the protest, and while many protesters were injured and arrested, the Applicant managed to escape unharmed and fled home.

4.  However, later when he heard that the police were looking for him for his involvement in the protest, and with news that the terrorist groups OPC and Boko Haram were also making terrorist acts against Christians in some parts of Nigeria, he decided that it was no longer safe to remain in Nigeria, and so on 27 October 2008 he departed for Hong Kong where he overstayed and subsequently raised his torture claim, which was later taken as a non-refoulement claim upon the commencement of the Unified Screening Mechanism,for which he completed a Non-refoulement Claim Form on 30 December 2015 and attendedscreening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  Whilst being released on recognizance pending determination of his claim, the Applicant was arrested by the police on 18 January 2011 for smuggling for which he was later convicted and sentenced to prison for four months, and on 13 April 2011 he was again arrested for undertaking employment without permission for which he was sentenced to another imprisonment for 13 months.

6.  By a Notice of Decision dated 20 April 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), 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”).

7.  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 OPC, Boko Haram or the Nigerian government to the Applicant upon his return to as low due to the absence or low intensity and frequency of past ill-treatment from them, that there was no evidence at all of any threats from OPC or Boko Haram directed against him other than his own speculation, that his parents and siblings had all being living safely in Lagos without any threats or incidents since his departure, nor was there any reliable evidence that he was beingpursued by the Nigerian authorities given the fact that he was able to leave the country without any problem, that in the absence of 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 or anywhere away from potential threats from OPC or Boko Haram such as Abuja State or Rivers State where the majority of the population were Christians and where it would be difficult if not impossible for those terrorist groups to locate him.

8.  By a Notice of Further Decision dated 22 June 2017 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”).

9.  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 3 May 2016, but for which he failed to attend the scheduled oral hearing on 29 August 2017 before the Board without any explanation, and for which he also failed to respond to the Board’s subsequent written request to explain for his non-attendance,and hence the Board proceeded to deal with his appeal in his absence and on paper.  On 15 September 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board found flaws and discrepancies in the Applicant’s claim of which he failed to attend the hearing to explain or clarify without any explanation, that based on the available materials before the Board that he had failed to show he had receivedany ill-treatment that had attained the minimum level of severity under any of the applicable grounds, that even on his own case that he had never encountered any threats or harm from any members of OPC or Boko Haram anywhere in Nigeria or that he had been targeted by them, that there was no evidence that the Nigerian government or authorities were still looking for him after all these years since his family’s move to other parts of Lagos in 2015,and concluded on the basis of all the materials before the Board and in the absence of any oral testimony from the Applicant that his non-refoulement claim failed on all applicable grounds.

11.  On 5 February 2018 the Applicant filed his Form 86 (dated 8 January 2018) for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affidavit of the same date in which he merely repeated that his life would still be in danger back home in Nigeria due to protest made against the government for killing his people of Biafra.

12.  The Applicant was however by then out of time with his intended application, 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.

13.  As the last day of the three-month period for him to file his Form 86 fell on 15 December 2017, the Applicant was therefore one month and three weeks late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application;and (iv) any prejudice to the putative respondent and to public administration: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

14.  In the Applicant’s case, a delay of one month and three weeks cannot be regarded as insubstantial, for which he did not provide any explanation, nor as noted above did he put forward any grounds for his intended challenge or any complaints of any error of law or procedural unfairness in the Board’s decision other than merely repeating his claim that his life would still be in danger due to alleged killings of Igbo people of Biafra committed by the Nigerian government years ago.

15.  In the absence of any valid grounds put forward by the Applicant for his intended challenge, or of any error of law or procedural unfairness or irrationality in the Board’s decision being clearly or properly identified by the Applicant, I am unable to find any reasonably arguable basis to challenge the Board’s decision, nor do I see any realistic prospect of success in his intended application.

16.  Furthermore, the facts that the indigenous Igbo people may have been discriminatedor persecuted in Nigeria in the past or that threats from OPC or Boko Haram may be present in some parts of Nigeria do not constitute a sufficient basis for the Applicant to challenge the Board’s decision that he failed to establish a well-found fear of being harmed or killed accordingly upon his return to Nigeria, as it has been held by the Court of Appeal that the mere existence of a consistent pattern of gross, flagrant or mass violation of human rights in the home country per se does not constitute a sufficient ground for determining that a particular person will be in danger of being harmed or subjected to torture upon his return to his home country: see Re RS CACV 206/2012, 20 August 2013; and Re Fitri Ambarwati & anor [2018] HKCA 461, CACV 110/2018, 2 August 2018.

17.  For these reasons I am not satisfied that there is any realistic prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reasons for his delay, I refuse to extend time and accordingly dismiss his leave 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