Nworie Bright Nnanna v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 11/2018

[2019] HKCFI 520

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 11 of 2018

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 oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  an extension of time for the application for leave to apply for Judicial Review against the decision of Torture Claims Appeal Board made on 25 April 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/she 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 is a 42-year-old national of Nigeria who arrived in Hong Kong on 19 January 2008 with permission to remain as a visitor up to 2 February 2008 when he did not depart and instead overstayed until he was arrested by police on 17 September 2008.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Nigeria he would be harmed or killed by the military police and security force for participating in protests by an anti-government student group against exploitation by foreign oil companies in Nigeria.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Umunoha, Mbaitoli Local Government Area in Imo State, Nigeria to a family of farmers.  While in secondary school he joined the militant student group known as Supreme Vikings Confraternity (“SVC”) opposing the Nigerian government for colluding with foreign oil companies in exploiting the local people including seizing their farmland for oil refinery purposes without proper compensation of which his family was also a victim in losing their farmland, and after entering university he became a senior member of the group in his campus and was active in participating in various anti-government protests and activities.

3.In one such protest in 2006 in Umunoha where several foreign oil companies were situated, the applicant and his fellow protesters including some of his family members and relatives were shot at by the Nigerian military police known as Mobile Police (“MOPOL”) trying to disperse them, and while the applicant managed to escape without serious injuries, his uncle and aunt were shot and killed in the incident.

4.To counter these protests and to protect their facilities the foreign oil companies had employed their own armed security forces known as AYEZ which would carry out counter measures against SVC members including making threats against them to call off their protests.  

5.One evening in 2007 while the applicant was with some of his fellow SVC members in a restaurant, he noticed that they were being followed and monitored by a group of AYEZ, and when they were leaving the restaurant on their motorbikes, they were shot at by the AYEZ people but managed to escape without getting hurt.

6.After the shooting incident, the applicant and his fellow SVC members would encounter death threats from the AYEZ people even in their university campus.  Fearing for his life the applicant therefore kept a low profile and stopped participating in any SVC activities, and after the school term ended in July 2007 he returned to his home when he was advised by his family to leave Nigeria to seek protection in Hong Kong, and so with the assistance of an agent he departed Nigeria on 18 January 2008 and arrived in Hong Kong on the following day, where he overstayed and subsequently raised his torture claim with the Immigration Department.

7.Whilst being released on recognizance pending determination of his claim, the applicant had on several occasions failed to report recognizance and for which he had been charged and sentenced to imprisonment, and on 15 March 2016 he was arrested for possession of a dangerous drug and for assaulting a police officer, for which he was later convicted and sentenced to another six-month imprisonment.

8.Upon the commencement of the Unified Screening Mechanism (“USM”) in 2014, the applicant’s torture claim was taken as a non-refoulement claim, for which he completed a Non-refoulement Claim Form on 26 October 2016 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.

9.By a Notice of Decision dated 30 December 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 (“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”).

10.In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from the MOPOL or AYEZ upon his return to Nigeria as low due to the low intensity and frequency of past ill-treatment from them, that their purpose was to disperse SVC protests and to protect the oil companies’ facilities, that they did not specifically target the applicant for attacks and would have no reason to do so after he had left SVC, that in the absence of 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 186 million people spread across a vast territory of more than 910,000 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 district in large cities such as Lagos or Enugu where he can live and work without any perceived risk of being harmed by his perceived enemies.

11.On 12 January 2017 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 5 April 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 25 April 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

12.In its decision the Board found no or no reliable evidence that the applicant had participated in activities that would cause him to be of adverse interest to the Nigerian authority, that even if his assertions were accepted that his actions in SVC were confined to attending protests demanding compensation for people dispossessed of their land, that such actions took place 10 years ago that many developments have since taken place in Nigeria, that due to passage of time that it is highly unlikely that AYEZ would still have any current interest in him, and that state protection would be available to him as well as reasonable internal relocation alternatives for him as an able-bodied highly educated adult to re-establish himself in Nigeria.

13.On 3 January 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no grounds for seeking relief was given in his Form or in his supporting affirmation of the same date where he merely stated that he was not satisfied with the Board’s decision and just repeated his claim as before:

“ I am not satisfied with the decision of the Immigration because I don’t want go back to my home country because my life is in danger and I will be arrested by Nigerian Immigration upon my return because I am in the central system as a wanted person and some members of my gang group.”

14.By then the applicant was of course way out of time with his Form 86, 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.

15.As the Board’s decision was made on 25 April 2017, the last date for the applicant to make his application fell on 25 July 2017 under the said rule, hence when he filed his Form 86 on 3 January 2018, he was more than five months out of time which must be regarded as a substantial delay.

16.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: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration & anor CACV 63/2015.

17.As noted above, in the applicant’s case a delay of more than five months must be considered as a substantial delay, for which he did not provide any explanation, and while it is noted that he was being detained at the Castle Peak Bay Immigration Centre at the time when his Form 86 was filed, clearly that cannot be accepted as a valid reason for such a substantial delay for the fact that he was still able to do so while being detained.  As such I do not accept that he had any valid reason for such substantial delay.

18.As for the merits of his intended application, in the absence of any grounds put forward by the applicant, or any legal error or procedural unfairness in the Board’s decision being identified by him, I do not see any prospect of success in his intended challenge either. 

19.Furthermore, as it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nigeria, the Board was right to find 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 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 for his late application, and accordingly his leave application is dismissed.

Dated the 21^st day of June 2019.

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