OSUJI ONYEKACHI LOUIS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 792/2019

[2023] HKCFI 835

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 792 of 2019

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.  The applicant applies for leave to apply for judicial review of the Decision dated 1 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Second Decision”) refusing to allow the applicant’s late filing of appeal/petition against the Director’s Second Decision as described below.

2.  The applicant did not request an oral 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 Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant is a national of Nigeria. He entered Hong Kong on 1 February 2009 as a visitor and was permitted to stay until 14 February 2009. On 13 February 2009, he traveled to Macau and reentered Hong Kong. He was allowed to stay until 28 February 2009. However, he did not depart and had overstayed since 1 March 2009. On 25 July 2009, he was arrested by the police for overstaying. On 28 July 2009, he lodged a torture claim, which was taken as a non-refoulement claim upon the commencement of unified screening mechanism. His claim was made on the basis that, if refouled, he would be harmed or killed by Agha.

5.  In short, the applicant’s claimed fear of harm originated from a love triangle in which both him and Agha dated a girl named Tina. The applicant started dating Tina in 2007 and, in their relationship, he paid for her university studies. However, she was also dating Agha at the same time. In late 2008, Agha reported to the police and claimed that the applicant interfered his relationship with Tina. Later, the applicant was attacked by four men allegedly sent by Agha for not staying away from Tina. Eventually, Tina decided to marry Agha. The applicant thus asked her to repay the money he paid for her studies. Agha was irritated by the applicant’s request and threatened to kill him. Out of fear, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraphs 5 and 6 of the Notice of Decision dated 2 December 2014 by the Director (the “Director’s First Decision”).

The Director’s Decisions

6.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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 way of the Director’s First Decision, the Director dismissed the applicant’s claim on the grounds of Torture risk, BOR 3 risk and Persecution risk as the level of risk of harm upon refoulement was assessed to be low. In elaboration, the Director found that (i) there was no state involvement [13]; (ii) he no longer had contact with Tina and it had been a long time since he left his country in 2009 [14]; (iii) state protection would be available to him [15]; and (iv) internal relocation was a viable option [16]-[21].

8.  In the Notice of Further Decision dated 23 January 2017, the Director also found that the applicant’s right to life would not be violated and dismissed his claim on BOR 2 risk (the “Director’s Second Decision”).

The Board’s Decisions

9.  The applicant first appealed the Director’s First Decision to the Board. The Board considered the evidence and relevant legal principles, and decided that it could fairly dispose of the applicant’s appeal on paper without an oral hearing [16]-[22]. Having considered the applicant’s claim and all the evidence, the Board found that, despite it accepted the factual basis of the applicant’s claim, he did not warrant a non-refoulement protection. In particular, the Board found that there was no severe pain or suffering inflicted on the applicant [40]; that it had been a long time since the claimed incident and there was no evidence that Agha was still looking for him [42]; that there was no state involvement [43]; and that internal relocation was viable for the applicant [56]-[58]. As a result, by a decision dated 4 August 2015, the Board rejected the applicant’s claim and dismissed his appeal against the Director’s First Decision (the “Board’s First Decision”).

10.  On 16 March 2017, the applicant filed a notice of appeal/petition against the Director’s Second Decision. He was around one month late [7]. The Board considered that, while the delay was a short one, the applicant did not provide a cogent explanation. Meanwhile, his claim was devoid of merits in light of the findings set out in the Board’s First Decision and that he did not advance anything new in the grounds of appeal [14]-[24]. As a result, by way of the Board’s Second Decision, the Board refused to allow the applicant’s late filing of notice of appeal/petition.

Application for leave to apply for judicial review of the Board’s Decision

11.  The applicant has filed Form 86 dated 21 March 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In his affidavit in support of his application, the applicant set out the grounds as follows:

(1)  failure to take all relevant consideration of his claims into account;

(2)  wrongful application of thresholds; and

(3)  unreasonable finding of state protection.

DISCUSSION

13.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. The question before this Court is whether the Board was correct to refuse to extend time for the applicant to file his appeal against the Board’s Second Decision on BOR 2 risk for the reasons given by it.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …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.”

16.  The Board rejected the reasons given by the applicant for his delay. It had further considered the merits of his case. In any event, his claim on BOR 2 risk cannot sustain because he had failed in his claim on BOR 3 risk. The Court of Appeal Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, 7 January 2022, held:

“59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017) 64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016) at [52].”

17.  The applicant has failed in his claim on BOR 3 risk in the Board’s First Decision, which he has not pursued further, and therefore has become final.

18.  The grounds in support of the applicant’s application are general assertion or proposition of the law. The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:

“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”

19.  There is no valid reason from the applicant to challenge the Board’s Second Decision.

20.  The Court does not find any error of law or procedural unfairness in the Board’s Second Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

21.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

22.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Second Decision. 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