KEITA MAMADY alias ADEGOJU LAWSON v. TORTURE CLAIMS APPEAL BOARD

HCAL 48/2021

[2025] HKCFI 5553

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 48 OF 2021

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and the Applicant being absent in open court;

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 27 April 2020 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 53-year-old national of Nigerian who arrived in Hong Kong on 3 November 2008 as a visitor on the strength of a Guinean passport in the name of Keita Mamady with permission to remain as such up to 17 November 2008 but was arrested by police on 4 November 2008 for drug trafficking for which he was convicted and sentenced to prison for 9 years and 4 months, during which he raised a torture claim later taken as a non-refoulement claim for protection to the Immigration Department as a Nigerian national under the real name of Adegoju Lawson on the basis that if he returned to Nigeria he would be harmed or killed by his creditors over his unpaid debts. Upon his discharge from prison in 2015, he was then released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Ondo State, Nigeria. After leaving school he moved to Jos Plateau State where he rented a farmland for his farming business to make his living.

3.  In 2006 for developing his farming business the Applicant borrowed a loan from some local money-lenders repayable by monthly instalments with interests which he initially managed to make from his business income.

4.  However, his business did not fare well, and by early 2007 he defaulted with his loan repayments, and in February 2007 his creditors started to send men to threaten him, and on one occasion those men forcefully brought him to their office to show him how they would torture him in the same way they did to those debtors who failed to repay their debts before allowing him to leave with a warning that they would similarly torture him if he still failed to repay his loan within 2 months.

5.  As a result the Applicant became fearful for his life, and after making some payments to his creditors, he then fled to Lagos, and in late 2008 he departed Nigeria with a forged Guinean passport under a fake identity for Thailand before travelling to Hong Kong on 3 November 2008 when he was subsequently arrested by police for drugs trafficking for which he was convicted and sentenced to prison for 9 years and 4 months, during which he raised his torture claim later taken as a non-refoulement claim for protection, and upon his discharge from prison and was referred to the Immigration Department to proceed with the screening of his claim, for which he completed a Supplementary Claim Form (“SCF”) on 31 October 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 16 June 2015 the Director of Immigration (“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 Ordinance, Cap 383 (“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 of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his creditor upon his return to Nigeria as low due to the absence of or low intensity and frequency of past ill-treatment from his creditor, that there is no evidence of any real intention of his creditor to seriously harm or kill him other than to press him to repay his debts, that in any event it was a private monetary dispute between him and his creditor only without 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 working experience to move to other areas of the country away from his home district in large cities such as Lagos where it would be difficult if not impossible for his creditor to locate him.

8.  On 27 November 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as his Notice of Appeal was filed outside the 14-days period required under Section 37ZS(1) of the Immigration Ordinance, and in pursuance of Section 37ZT (2) of the Ordinance the Board proceeded to decide as a preliminary decision whether to allow the late filing of the Applicant’s Notice of Appeal, and by a decision[1] dated 29 December 2015 the Board refused to allow the late filing of his Notice of Appeal upon finding that it was some 5 months late, that the delay was very substantial, that the Applicant’s explanation of having lost the appeal form was not acceptable or reasonable, and that there were no special circumstances that would make it unjust not to allow the late filing of his Notice of Appeal.

9.  The Applicant never sought to challenge this decision of the Board by way of judicial review, and meanwhile on 24 January 2017 the Director on his own initiative invited the Applicant to submit any additional facts which he may consider relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2”), and in the absence of any response or reply from the Applicant, the Director by a Notice of Further Decision dated 10 February 2017 also rejected his BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to Nigeria.

10.  On 16 February 2017 the Applicant again lodged an appeal to the Board against this Further Decision of the Director, but for which he failed to attend the scheduled hearing on 1 November 2019 without any explanation, nor did he make any response to the subsequent enquiry by the Board for his failure to attend the hearing, and that the Board accordingly proceeded to consider his appeal on paper including his grounds of appeal and information as stated in his Notice of Appeal including his claimed fear of harm from his creditor over his unpaid debts as before, and additional risks not previously raised or supported by reliable evidence including the insurgency of the Islamic militants Boko Harem in Nigeria, the occurrence of Ebola virus in West Africa, as well as the risk of double jeopardy of being arrested and prosecuted by the Nigerian authorities for his drug trafficking offence committed in Hong Kong upon his return to Nigeria.

11.  By a Decision[2] dated 27 April 2020 the Board rejected his BOR 2 Claim and dismissed his appeal upon finding no reliable evidence of him having ever faced any real risk of harm from his creditor over any outstanding debts prior to his departure of Nigeria, while his other claimed risks were just bare assertions unsupported by any evidence that such risks were real or personal or that he has ever faced any of them in the past or that he would be specifically targeted for any such harm in future, and that in any event none of these claims would engage the BOR 2 Risk given its limited scope that the Board concluded that the Applicant had failed to establish a personal and real risk of being arbitrarily deprived of his life if refouled to Nigeria in violation of BOR 2 ground, and that it also confirmed the Further Decision of the Director.

12.  On 12 January 2021 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board dated 27 April 2020 as regard his BOR 2 Claim, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, nor did he subsequently attend the scheduled hearing of his application without any explanation.

13.  By then the Applicant was also out of time with his application, 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 day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

14.  As the last day of the three-month period for him to file his Form 86 fell on 27 July 2020, the Applicant was therefore more than 4 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: AW v Director of Immigration [2016] 2 HKC 393.

15.  In the Applicant’s case, a delay of more than 4 months must be considered as very substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, and as he also failed to attend the hearing of his application without any explanation, I am unable to see any good or valid reason for his such serious delay.

16.  As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forward any proper ground for his intended challenge or to attend the hearing of his application without any explanation. As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

17.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

18.  In the Applicant’s case, the Board rejected his BOR 2 Claim for the thorough and detailed analysis and reasoning set out in its decision, that on the factual basis of even his own case that his claim simply did not engage the BOR 2 ground due to its limited scope, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

19.  Furthermore, the fact is that it has also been correctly established by the Director in his decision that the risk of harm in his claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nigeria, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

20.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

21.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave 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