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HCAL 1294/2018
[2021] HKCFI 690
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1294 of 2018
BETWEEN
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Ibe Chukwuma Lawrence |
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 28 June 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 Nigerian national. He came to Hong Kong on 20 January 2008 as a visitor. He overstayed and was arrested by police on 17 September 2014. He raised his non-refoulement claim with the Immigration Department by written representation dated 19 September 2014.
5. He claimed that if refouled, he would be ill-treated, tortured and persecuted by his uncle called Amaobi, who is well-connected with the People’s Democratic Party and the police in the locality. The dispute arose out of the distribution of properties by his grandfather to his father and uncle Amaobi. His father was given a better piece of land whereas uncle Amaobi was given a poorer one. Uncle Amaobi was unhappy with this arrangement. He pressed the applicant’s father to let him have the better piece of land. His father refused whereupon he took other people to his home to assault his father and him. Uncle Amaobi threatened to kill his father and him if his father refused to hand over the piece of land he wanted. His father was firm on this and refused to yield. His father was forced to take poison by uncle Amaobi’s people and he died. His brother was also killed by uncle Amaobi’s people by gunshots. He had to leave Nigeria for safety. His friend called Emeka had given him USD10,000 for him to come to Hong Kong to buy some phone accessories for him. He did not get the brand and he bought used auto parts. Emeka demanded repayment of the money or he would kill him. Details of the incidents are set out in paragraphs 12-37 of the Board’s Decision.
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 24 November 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 harm from uncle Amaobi upon his return to Nigeria was assessed to be low [55]; that state protection was available to him [74] and internal relocation was an option open to him [104].
The Board’s Decision
8. The applicant appealed to the Board against the Director’s Decision. He attended the hearing on 18 April 2018.
9. By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons as set out below.
(1) The Board had cross-examined the applicant extensively in the hearing. See paragraphs 58-93.
(2) Having considered the applicant’s evidence, the Board concluded that he was not a witness of truth and he had not told the truth in relation to critical aspects of his claims. [94]
(3) The Board also concluded that the applicant had fabricated his claims of a property dispute with his uncle, and that he and his father and brother were threatened and beaten by his uncle and his uncle’s men, and that his father and brother were both murdered and he was threatened and beaten as claimed. [95] In a nutshell, the Board rejected his evidence on the facts in support of his claim. See §§98&99.
(4) For the above reasons, the Board rejected his claim on Torture risk [111], BOR 3 risk [118], BOR 2 risk [122] and Persecution risk [134].
Application for leave to apply for judicial review
10. The applicant filed Form 86 on 5 July 2018 for leave to apply for judicial review of the Board’s Decision.
11. In his affidavit in support of his application, he only attached a copy of the Board’s Decision without saying anything.
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. He has not set out any ground in support of his application in his affidavit dated 5 July 2018.
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 22nd day of March 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 22 March 2021
Ibe Chukwuma Lawrence
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 22 March 2021
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 9446/17/12/113/NI177
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 2667/17 (Formerly RBCZ 3001866/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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