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HCAL 1863/2018
[2020] HKCFI 1541
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1863 of 2018
BETWEEN
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Ajaegbu Martin Chiaka |
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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and |
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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 11 June 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV 8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 24 December 2019.
3. Leave was granted to the applicant to amend Form 86 by deleting the Director of Immigration (“the Director”) as respondent and replacing him with the Board as respondent and also by naming the Director as interested party.
The applicant
4. The applicant is a Nigerian national. He came to Hong Kong on 10 May 2009 and was permitted to stay as a visitor until 24 May 2009. He overstayed and was arrested by police. He was referred to the Immigration Department. He lodged his non-refoulement claim on 21 November 2015.
5. He claimed that if refouled, he would be harmed or even killed by his paternal uncle, Ajaegbu, Aloyshou Manu, who coveted his father’s land, which he would inherit from his father in future.
6. His uncle is a wealthy and influential person in Nigeria. His uncle had, on many occasions, told the applicant that he would kill him for the land. After the applicant’s parents passed away, his other siblings left the family for their own safety. He was concerned about his safety as well because his uncle would kill him in order to get title of the land. He left Nigeria for Hong Kong in May 2009.
The Director’s Decision
7. The Director considered his application in relation to the following risks:
a.risk of torture under Part VIIC 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”).
8. By Notice of Decision dated 29 March 2017, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of risks he claimed if he returned to his own country was low [12]; that state protection was available to him [16] and internal relocation was an option open to him [21]. His claim under BOR 2 risk was not established.
The Board’s Decision
9. The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 16 May 2018.
10. By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision.
11. The Board considered the applicant’s evidence and found that the risk of the applicant being caught up in violence to be remote, and there was no real risk of him facing harm upon his return to his own country [75]. See §§10-75 of the Board’s Decision for detailed discussion. The Board also found that internal relocation was an option open to him [77-82].
Application for leave to apply for judicial review
12. The applicant filed Form 86 on 6 September 2018 for leave to apply for judicial review of the Board’s Decision.
13. In his affirmation in support of his application, he did not set out any grounds in support of his application. He did not say what error the Board had committed in coming to its decision.
DISCUSSION
14. The applicant appeared before me. He confirmed that he was treated fairly before the immigration officer and the Adjudicator of the Board. His lawyer had explained the Director’s Decision to him. His friend had explained the Board’s Decision to him.
15. As to the Board’s findings, he said that he disagreed with her as she knew very little about the situations in Nigeria.
16. In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.
17. There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusion on the facts of the case.
18. The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.
CONCLUSION
19. I therefore refuse to grant leave to the applicant to apply for judicial review. Accordingly, I dismiss his application.
Dated the 14th day of July 2020
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(Mike Mak) |
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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 14/7/2020
Ajaegbu Martin Chiaka
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 14/7/2020
Torture Claims Appeal Board/ Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 6815/17/4/91/NI130
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 206/17
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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