KAMARA ALPHA IBRAHIM BUBA v. DIRECTOR OF IMMIGRATION

HCAL 507/2018

[2019] HKCFI 1049

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 507 of 2018

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.  an extension of time for the application for leave to apply for Judicial Review of the decision of Director of Immigration made on 13 March 2017 refused; and

2.  leave to apply for Judicial Review dismissed.

It is further directed that:

3.  if the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

4.  when filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

5.  the court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

6.  if the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

7.  liberty to apply.

Observations for the Applicant:

1.  The applicant first arrived in Hong Kong on 13 February 2013 on a Sierra Leone passport with permission to remain as a visitor up to 27 February 2013, and on 16 February 2013 he left for China but returned on the same day and was again permitted to remain as a visitor up to 2 March 2013 when he did not depart and instead overstayed and was arrested by police on 15 October 2013.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Sierra Leone he would be harmed or killed by certain member of a political party over some monetary dispute, but later during his screening interview before the Immigration Department, he disclosed that he was in fact from Nigeria with a different identity and that he would be harmed or killed by the terrorist group Boko Haram for religious reason if he returned to Nigeria.  His claims were therefore assessed on both bases.

2.  For his first claim, the applicant was said to be born in 1974 in Freetown, Sierra Leone where he received no education and worked in odd jobs, but he and his family supported the political party National Congress Party (“NCP”).

3.  During the 2012 election, a leader of NCP provided him and his family with money to bribe their neighbours to vote for NCP, but after NCP lost the election won by the All People’s Congress Party (“APP”), the NCP leader demanded the return of the money from the applicant, and when he told him that he had already paid all the money to the voters, his father was kidnapped, and after his mother had also gone missing when she went looking for his father, the applicant feared for his own safety and fled to hide in his friend’s place, but when he was told by his friend that his parents had been murdered by the NCP people, he therefore departed for Hong Kong in February 2013 and subsequently raised his non-refoulement claim.

4.  Whilst being released on recognizance pending determination of his claim, the applicant was arrested by police on 21 January 2015 for drug trafficking, for which he was subsequently convicted on 24 July 2015 and sentenced to prison for 50 months. 

5.  On 3 November 2015 he completed and submitted to the Immigration Department a Non-refoulement Claim Form (“NCF”) with legal representation from the Duty Lawyer Service in which he confirmed his claim as described above.  However, when he attended the subsequent screening interview before an immigration officer on 12 May 2016, he revealed that he was in fact a Nigerian with a different identity and wholly different background information while those previously in his NCF were incorrect.

6.  As a result he was required to submit his supplementary information which he did on 28 June 2016 and 5 December 2016 and with further information revealed during his second screening interview before the immigration officer on 15 December 2016, including documents from the Nigerian Consulate General in respect of his Nigerian identity.

7.  For his second claim, the applicant claimed to be born in 1984 in Rivers State, East of Nigeria as a Christian and where he had inherited some land from his father.  In 2008 the local community of his home town told him that the land should belong to the community and that he should give it up, and when he refused, he was harassed and threatened with violence by the people in the community that in 2009 he moved to the northern part of Nigeria, but as he was a Christian, he then became concerned for his safety due to threats from the terrorist group Boko Haram based in northeastern Nigeria which advocated violence against non-Muslims especially Christians, and so he fled to Sierra Leone where he took shelter at his friend’s place and where he subsequently converted to a Muslim, but later due to the monetary dispute in Sierra Leone as referred to in his first claim, he therefore fled to Hong Kong for non-refoulement protection.

8.  By a Notice of Decision dated 13 March 2017 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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”).

9.  In his decision the Director took into account all the relevant circumstances of the applicant’s claim and found his first claim in relation of Sierra Leone as incredible and unacceptable given his subsequent claim that he was in fact a Nigerian with a different identity and background information, that the many inconsistencies in his claim without any independently corroborated evidence had rendered his account of events alleged to have occurred in Sierra Leone unacceptable, and that in any event reasonable relocation is available that it would not be unduly harsh for him to relocate to other places in Sierra Leone where it would be difficult if not impossible for his perceived enemies to locate him.  

10.  As for his claim relating to events in Nigeria, the Director assessed the level of risk of harm from his local home community and/or the Boko Haram upon his return to Nigeria as low due to the absence or low intensity and frequency of past ill-treatment from them, that there is no evidence that he had ever been targeted by Boko Haram and that objective and current Country of Origin Information (“COI”) show that their threats have since his departure been much reduced due to successful military actions taken by the Nigerian government against them, that state or police protection would be available to the applicant if resorted to, and that COI also show that reasonable internal relocation alternatives are available in Nigeria with a large population of 186 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 work experience to move to other part of Nigeria away from his home town or from Boko Haram home base in the northeastern part to large cities such as Lagos or Benin City where it would be difficult if not impossible for those perceived enemies of his to locate him.

11.  The applicant did not lodge any appeal to the Torture Claims Appeal Board (“the Board”), but instead on 28 March 2018 filed a Form 86 for leave to apply for judicial review of the Director’s decision, and put forward the following grounds for his intended challenge:

(1)  that the Director reached his decision wrongly in assessing his claim;

(2)  that the decision is not reasonable or fair.

12.  However, he was by then way 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 date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

13.  As the last day of the three-month period within which the applicant was required to file his Form 86 fell on 13 June 2017, he was therefore more than nine 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: Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

14.  In the applicant’s case, a delay of more than nine months is regarded as substantial or inordinate, for which he merely stated in his supporting affirmation of the same date that he was then being detained at the Castle Peak Bay Immigration Centre (“CIC”) without providing any further details or particulars, the fact is that he was nevertheless able to make his application and affirmation while being detained, and while some difficulties in getting assistance to prepare the necessary documents in his situation may well be inevitable, I do not accept that that reason by itself can justify such a substantial delay, and as he failed to appear at the hearing of his application without any further explanation, I do not accept that he has provided any valid or good reason for his delay.

15.  As for the merits of his intended application, his proposed grounds are just some broad and vague assertions without any particulars or specifics or elaborations as to how they applied to his case or how the Director had erred in his decision, or in what way was the decision unfair or unreasonable.  In the absence of any legal error or procedural unfairness being clearly and properly identified by the applicant, I do not find either of his ground reasonably arguable for his intended challenge.

16.  In the premises and having considered the Director’s decision with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in it, nor any failure on his part to apply high standards of fairness in his consideration and assessment of the applicant’s claim.  Given the inconsistent and conflicting evidence of the applicant in respect of his claim, and on the basis of the materials available, the Director was in my judgment clearly entitled to reject the applicant’s claim for the reasons set out in his decision.

17.  For 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 substantial delay, I refuse to extend time and accordingly 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