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HCAL 2791/2018
[2021] HKCFI 2211
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2791 of 2018
BETWEEN
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Anozie Chidi Frankline |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
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 10 September 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
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 as a visitor on 12 November 2014. He overstayed. He was arrested by police on 13 March 2015. He lodged non-refoulement claim with the Immigration Department on 16 March 2015.
5. He claimed that if refouled, he would be harmed or killed by Udoka because he witnessed him involved in a murder case, the deceased was Eze. Udoka and Eze were shareholders in the company in which he served. Udoka and his people were looking for him in order to silence him as a witness of the murder case. He had to live in various places in avoid Udoka. In October 2014, he left Nigeria for Hong Kong. In November 2014, his friend in Nigeria told him that his wife and son were shot dead. He suspected that Udoka and his people killed them. He also said that he feared Boko Haram terrorists caused instability in his country and the government were unable to provide him with protection. Details of his story are set out in paragraph 7 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 20 September 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 being harmed or killed if he returned to Nigeria was assessed to be low [13]; that there was no evidence that the state was involved in his case [26]; that state protection was available to him [32] and internal relocation was an option open to him [35].
The Board’s Decision
8. The applicant appealed against the Director’s Decision. He attended the hearing before the Board on 7 May 2018.
9. By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision. The adjudicator had cross-examined the applicant’s evidence in details. After careful analysis, the adjudicator found that his evidence in relation to the murder scene and Udoka chasing him in order to silence him as a witness were fabrications; that there was no evidence that there was a substantial or real risk that he would be targeted for harm for the reasons he claimed or for any other reason, not least that he would have such risk in the future. In a nutshell, the Board rejected his facts in support of his claim. See paragraphs 63-105 of the Board’s Decision.
Application for leave to apply for judicial review
10. The applicant filed Form 86 on 6 December 2018 for leave to apply for judicial review of the Board’s Decision.
11. In his affidavit in support of his application, he said that it was dangerous for him to return to his country and that the Board’s findings of the facts were unreasonable because the Board had failed to reach the high standard of fairness.
DISCUSSION
12. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
13. 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.”
14. His grounds in support of this application do not assist his application as they are his opinions only. Having considered the Board’s reasons in support of its conclusion, it is clear that it was entitled to reach its conclusion as it did.
15. 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.
16. There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.
CONCLUSION
17. I therefore refuse to grant leave for the applicant to apply for his intended judicial review. Accordingly, I dismiss his application.
Dated the 30th day of July 2021
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(M.O. WONG)(Ms) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant
on 30 July 2021
Anozie Chidi Frankline
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 30 July 2021
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 8690/17/10/20/NI158
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 1313/17 (Formerly RBCZ 10931/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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