Ofuka Benedict Sally v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 985/2017

[2018] HKCFI 2270

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 985 of 2017

BETWEEN

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 present/absent in open court;

Order by The Honourable Mrs Justice Campbell-Moffat:

Extension of time for leave to apply for judicial review be refused.

Observations for the Applicant:

Procedural history

1.The Applicant entered Hong Kong legally on 4 March 2008 and overstayed.  He was arrested by the police on 25 May 2009 for and was transferred to the Immigration Department on the next day.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 28 May 2009.  He was released upon recognisance on 4 June 2009.  His NRF claim form was submitted on 24 August 2015.

2.The Applicant attended screening interviews on 20 October and 11 December 2015.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 5 May 2016 and by Notice of Further Decision (re BOR 2) on 24 February 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Kevin Ball (“the Adjudicator”), heard his appeal on 2 and 6 March 2017.  He considered his appeal on all applicable grounds including BOR 2.  The Adjudicator refused his appeal on 26 July 2017.

Background to the claim

3.The Applicant was born in Boji Boji Owa and is a Christian from the Ika tribe.  He is single.  He attained a Bachelor of Business Administration and was a chartered administrator between 1990 and 1994. From then until 2007, the Applicant ran his own business selling fabric.  He maintains that he was an active member of the Niger Delta Awareness Movement of Agbor (‘the Movement”), which was a human rights movement seeking to overthrow the government.  The Applicant was the head of the publicity department and carried out this job despite being located some distance away from Agbor.

4.In 1993, the Applicant was arrested for his involvement in the Movement and was detained for three days during which time he was assaulted by the police and security services.  He was slapped; put in a dark cell; handcuffed by hand and foot; deprived of food, water or medical treatment and proper hygiene.  They laid him on a wooden table and whipped him. They also hit his wrist with an iron bar and placed a stick in his anus.  This all caused bruising and swelling as well as a broken wrist and difficulty seeing out of his left eye.  The Applicant was brought before the Director of Security Services after three days and was released after explaining to the Director that he was exercising his rights.  The Applicant was treated at a local clinic and not a hospital, as the staff at the hospital could not be trusted.  His wrist was set and his other wounds were treated with local medicine.

5.As a result of his detention and ill treatment, the Applicant moved to Lagos and sought to change his looks to avoid detection. However, he continued his activism and was once more sought by the police in 1995 and believed he had been placed on a wanted list.  Nevertheless, he continued to operate his business in Lagos.  He did return home on occasion but for very short periods of time and was not detained.  The Applicant went to Ghana in 2007 for three months but suffered financial difficulties and therefore returned to Nigeria.  One week later, he left for Hong Kong using his own passport without incident because he did not pass through the normal immigration control points.

Form 86 out of time

6.In accordance with Order 53 rule 3, the Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review.  This was dated 30 November 2017.  Under Order 53 rule 4 an application for judicial review shall be made promptly and in any event within three months from the date when the grounds for the application first arose.  Where the relief sort is a review of a case tried in a lower court, the relevant date from which time runs is the date of that decision.  In this case time ran from 26 July 2017.  The Notice of Decision was sent to the Applicant’s registered address; the same address he relies upon for these proceedings.  The Applicant has submitted no explanation for his delay and has not sought leave for an extension of time.  

7.I have nevertheless considered the principles applicable to granting such an extension if an application had been made and those are:

1) the length of delay;

2) the reasons for delay;

3) the prospects of success in the intended appeal; and

4) the prejudice to the putative respondent if extension of time were granted.^[1]

8.In this case the Applicant was late by 35 days and has not offered any explanation for this delay. In view of that, he must satisfy the court that there are real prospects of success in his intended leave application and that there will be no prejudice to the putative respondent before an extension of time will be granted.  There were no grounds of review.  There is no reason at all before the court as to why an extension of time for leave to apply for judicial review should be given.  The Applicant’s claim as explained above was not found to be substantiated by the Director or the Adjudicator.  There is nothing from the Applicant or in the papers to suggest the Adjudicator has acted improperly or unreasonably in coming to his decision. The Applicant’s case is not therefore reasonably arguable and does not have a realistic prospect of success.

9.Accordingly, this application is dismissed as being out of time.

Dated 7^th day of December 2018.

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