VICTOR VITUS CHIZOBA v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1697/2018

[2019] HKCFI 2571

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1697 OF 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for judicial review be refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.  The applicant is a Nigerian national who entered Hong Kong on 1 December 2012 and was allowed to stay as a visitor until 22 December 2012.  The applicant overstayed in Hong Kong from 23 December 2012.  On 25 February 2015, he surrendered to the Immigration Department. He lodged a non‑refoulement protection claim on 4 March 2015.  This claim was rejected by the Director of Immigration (“the Director”) on 1 March 2017.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which was rejected on 21 March 2018 after an oral hearing conducted on 7 February 2018.  

2.  The applicant filed a notice of application for leave to apply for judicial review on 1 August 2018.  He did not request an oral hearing therefore; I will consider his application on the papers.  He did not name a proposed respondent in his application but in his affirmation he named the adjudicator of the TCAB and challenged his decision.

3.  This notice of application was filed late; it was not within three months of the date of the adjudicator’s decision (Order 53 Rule 4).  It was about six weeks late.  His notice of application does not set out any reasons for the delay as it should.  In fact, it does not acknowledge the application is late.  It does not seek an extension of time to file this application as it should.  His affirmation in support of his application makes no mention of the delay nor gives any reason for the delay.  In fact, he only states that the adjudicator of the TCAB failed to ask him the correct questions to substantiate the applicable grounds in his application and that there were errors of law in the decision.

4.  I have considered the legal principles for granting an extension of time for judicial review, the following factors are significant such as the length of delay, the explanation given for the delay, the merits of the substantive application, the prejudice to both the respondent and the public administration and whether the application raised any questions of general public importance.

5.  I find the delay is not insignificant, there is no explanation for the delay and there is no good reason for extending time.  In fact, there are no proper or substantive grounds put forward to support this application.  The application, even on review of the papers, does not raise any questions of general public importance.  Delay alone is enough to dispose of this application.

6.  In any event, I did consider the adjudicator’s decision and the reasons he rejected the applicant’s appeal/petition.  The adjudicator of the TCAB, as did the Director, analysed the applicant’s claim under all applicable grounds;

a. risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

b. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

c. risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

d. risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

7.  The adjudicator treated the appeal as a rehearing and directed that a hearing be conducted.  The applicant appeared and elected to answer questions.  The adjudicator set out the law and key legal principles applicable to an applicant in such a situation and to all four grounds.  The adjudicator did not find the applicant’s evidence credible or truthful.  He did not find him a genuine claimant.  He set out in full in his decision the inconsistencies and discrepancies that seriously undermined the credibility of the applicant.

8.  The adjudicator took into account the time-lapse between his evidence and events he was recounting as well as being mindful of the fact that it is quite possible for the centrepiece of an applicant’s claim to stand despite the presence of some exaggeration, uncertainty or even untruthfulness.  However, he found that this was not the case with the applicant’s evidence.  He found it contradictory and inconsistent in relation to a wide range of matters.  He concluded that his evidence was so poor that he found it unusually difficult to construct a coherent narrative of events in the applicant’s life.  The adjudicator explained in full in his decision why he reached those conclusions and gave full examples to support his findings.  He dismissed the appeal/petition and confirmed the decision of the Director.

9.  Even though there are no substantive grounds relied on by the applicant, I did examine and scrutinised the adjudicator’s decision to ascertain whether he made any errors of law and whether he analysed the appeal/petition with a high standard of fairness as is required.  I considered whether the application of the enhanced Wednesbury test was satisfied.

10.  I found no failings on the part of the adjudicator.  He gave full reasons for his finding that the applicant was not a genuine claimant nor a truthful, credible witness.  I found no errors of law nor any evidence of procedural unfairness. He did not fail to adhere to a high standard of fairness.  Even if there had been no delay in this application, I see no realistic prospect of success and I refuse leave to apply for judicial review.

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