ALKASSOUM IBRAHIM v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 789/2018

[2020] HKCFI 2327

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 789 of 2018

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

Following:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 27 November 2017 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1.   The Applicant is a 48-year-old national of Niger where he was born and of Nigeria where he had resided and who last arrived in Hong Kong on 15 February 2012 with permission to remain as a visitor up to 18 February 2012 when he did not depart and instead overstayed and was arrested by police on 8 March 2012.  After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Niger he would be harmed or killed by his uncle over a property dispute in Niger.  He was subsequently released on recognizance pending the determination of his claim.

2.   The Applicant was born in Bouza, Niger.  His parents died when he was very small, and that he and his siblings while living in his father’s house were raised by their neighbours.

3.  The Applicant being the eldest son stood to inherit his father’s house, which was however coveted by his uncle who had since been threatening and harassing him to hand over the documents of the house to his uncle.

4.  To avoid further threats and harassments from his uncle, the Applicant left Niger in about 1982 for neighbouring Nigeria looking for his friend, and where he subsequently met a business man who was sympathetic to his situation and supported him through secondary school in Nigeria and later hired him to work in his handbag shop in Lagos.

5.  In November 2009 the Applicant heard that his uncle was looking for him in Nigeria over his father’s property in Niger, he therefore departed Nigeria for China where he continued to conduct business there for his Nigerian employer during which he would travel to Hong Kong from time to time, and on the last occasion when he visited Hong Kong on 15 February 2012, he overstayed and upon his arrest by police, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 5 August 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 29 November 2016 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 Ordinance, Cap 383 (“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”).

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 uncle upon his return to Niger as low due to the absence of or low intensity and frequency of past ill-treatment from his uncle, that his problem with his uncle was a private property dispute 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 show that reasonable internal relocation alternatives are available in Niger with a large population of 18 million people spread across a vast territory of more than 1.2 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Niger away from his home district or in Nigeria where he had lived for more than 27 years without incidents and where in either countries that it would be difficult if not impossible for his uncle to locate him.

8.  On 13 December 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 4 October 2017 before the Board during which he however refused to co-operate with the Board in clarifying or explaining his claim or to answer questions put to him by the adjudicator for the Board.  On 27 November 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found in the absence of clarification or explanation from the Applicant during his appeal hearing regarding his claim that it was unable to attach credence to his claim of being sought by his uncle from Niger over a property dispute after he had left for Nigeria for more than 27 years, and that in any event that it was a private family dispute without any official involvement that state/police protection in both Niger and Nigeria would be available upon his return to either countries as well as reasonable relocation for him to move to other area in Niger away from his home district or to Nigeria without any risk of being located by his uncle that his claim for non-refoulement protection failed on all applicable grounds.  

10.  On 4 May 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form, and in his supporting affidavit of the same date he merely stated that he was not satisfied with the Board’s decision as unjust and unfair but without providing any particulars or specifics or elaborations as to how it was so or any other ground for his intended challenge, nor did he request any oral hearing for his application.

11.  He was however by then also out of time with his application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 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.

12.  As the last day of the three-month period for him to file his Form 86 fell on 27 February 2018, the Applicant was therefore more than 2 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.

13.  In the Applicant’s case, a delay of more than 2 months cannot be regarded as insignificant, for which he simply claimed to have been detained at the Castle Peak Bay Immigration Centre without any further details or particulars as to when and why he was so detained.  As such while I accept that he may have been so detained, in the absence of any further details from him, I am not satisfied that it was good or valid reason for his delay.

14.  As for the merits, if any, of his intended application, as already noted the Applicant has failed to put forward any proper ground for his application, 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 for his intended challenge.

15.  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.

16.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Niger or to Nigeria, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

17.  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.

18.  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 significant 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