ENEANYA ONAYE FERDINARD v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 241/2018

[2020] HKCFI 946

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 241 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 3 August 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 38-year-old national of Nigeria who arrived in Hong Kong on 7 June 2008 with permission to remain as a visitor up to 14 June 2008 when he did not depart and instead overstayed until he was arrested by police on 6 May 2009. 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 supporters of rival political party People’s Democratic Party (“PDP”) who had already murdered his father for being a member of opposite party Action Congress (“AC”).  He was subsequently released on recognizance pending the determination of his claim.

2.     The Applicant was born and raised in Benin City, Edo State, Nigeria where his father was a supporter and member of AC, and under his father’s influence he also became a supporter but held no membership or position in the party, nor had he participated in any of its activities.

3.     In 2008 PDP was the ruling party but later lost in the general election won by an AC candidate, but PDP refused to give up power and in the post-election chaos there were violent clashes and fighting between the supporters of the two rival parties and that there were reports of PDP people killing the AC members and supporters.

4.    One night on 15 May 2008 some masked men came to the Applicant’s home and started shooting that his father was shot and killed but the Applicant managed to escape in the dark through the back door to hide in a friend’s place.

5.     The Applicant suspected that those masked men were PDP supporters and did not report the shooting to the police as he believed that they were under PDP influence, but as he was also fearful for his life that those masked men would be going after him for having witnessed their murder of his father, he therefore departed Nigeria on 6 June 2008 for Hong Kong where he subsequently overstayed and later raised his torture claim after his arrest by the police which was taken as a non-refoulement claim upon commencement of the Unified Screening Mechanism, for which he completed a Non-refoulement Claim Form on 12 June 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.    By a Notice of Decision dated 11 August 2014 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 the PDP people to the Applicant upon his return to Nigeria as low due to the absence of any past ill-treatment from them,that there is no reliable evidence that those masked men who killed his father were indeed PDP people, that in any event there was no evidence that they had also targeted the Applicant given that he held no position in AC, that in the absence of 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 177 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 tertiary education to move to other part of Nigeria away from his home district in large cities such as Abuja or Lagos where it would be difficult if not impossible for those PDP people to locate him.

8.  By a Notice of Further Decision dated 6 January 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 1 September 2014, for which he failed to attend the oral hearing scheduled at 10 am on 19 January 2017, and when he again failed to attend the re-scheduled hearing on 24 January 2017 without any explanation, the Board proceeded to deal with his appeal in his absence and on paper.  On 3 August 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board found in the absence of any oral testimony from the Applicant but from the materials and information available that there was no evidence that he had ever been threatened by any members of PDP or that those maked men who murdered his father were indeed PDP people, that his fear of harm from them was simply his own assumption or speculation, that he did not raise his non-refoulement claim immediately upon his arrival in Hong Kong and instead only after his arrest by the police almost one year later had undermined his credibility that he had any well-founded fear of being harmed by the PDP people after all these years, and concluded that he had failed to show any substantial grounds for believing that he would be at risk of being harmed or killed upon his return to Nigeria that his claim failed on all applicable grounds.

11.  On 14 February 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely stated that he sought leave to apply for judicial review of those decisions because they rejected/dismissed his claim, and just exhibited copies of them as well as other documents from his hearing bundle before the Board.  He did not request for any oral hearing for his application either.

12.  The Applicant was by then however late 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.

13.  As the three-month period for the Applicant to file his Form 86 expired on 4 November 2017, he was therefore almost 3 ½ months 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 more than three months must be considered as substantial or excessive, for which he did not provide any explanation, nor as noted above did he put forward any grounds for his intended challenge, and as he also failed to attend his appeal hearing before the Board to give oral testimony to substantiate and clarify his claim, or to answer questions raised of his assertion of well-founded fear of harm upon his return to Nigeria, the Board was in the circumstances entitled to make, and correctly in my judgment, adverse finding against his claim based on the materials and information available to it, and in the absence of any error of law or procedural unfairness in its decision being clearly or properly shown by the Applicant, I do not find any reasonably arguable basis or merits in his intended application.

15.  Furthermore, 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, a decision also confirmed by the Board that there was no justification to afford him with non-refoulement protection in Hong Kong:see TK v Jenkins & anor [2013] 1 HKC 526.  In the circumstances I am simply unable to see any realistic prospect of success in his intended challenge.

16.  In the premises and for these reasons I do not find any good reason for the Applicant’s delay with his Form 86, and I accordingly refuse to extend time and 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