Simona Mundia v. Immigration Department and Another

HCAL 3001/2018

[2020] HKCFI 1031

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3001 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following:

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 48-year-old national of both Zambia and Nigeria who last arrived in Hong Kong on 11 July 2010 when he was arrested at the airport for trafficking in dangerous drugs for which he was subsequently convicted and sentenced to prison for 12 years.  While serving his sentence in prison he raised a non-refoulement claim with the Immigration Department on the basis that if he returned to Zambia or Nigeria he would be harmed or killed by the drug trafficking organization in Zambia for failing to deliver the drugs and/or by the Nigerian government for being involved in a secessionist group known as Movement for the Actualization of the Sovereign State of Biafra (“MASSOB”).  

2.The Applicant was born and raised in Lusaka, Zambia to a Nigerian father and a Zambian mother and hence he has duo nationality of both countries.  After spending his childhood in Zambia, he moved with his parents to Aba City, Abia State, Nigeria where he took an apprenticeship with a local trader, and also became a supporter of MASSOB participating in their rallies and demonstrations, and during one of such demonstrations that the police arrived to disperse them by shooting at them with guns and with subsequent mass arrest, but he managed to make his escape unharmed.

3.Later he came to befriend some business associates who offered him an apprenticeship in their business which brought him to work in Cambodia and Bangkok with frequent travels to other cities in Asia including Hong Kong, Macau and Mainland China.

4.One day in July 2010 he was told to bring something to someone in Hong Kong which he was unaware were illegal drugs until he was stopped and searched by the immigration officers at the Hong Kong Airport, and for which he was subsequently convicted of the offence of drug trafficking and was sentenced to imprisonment for 12 years.

5.Whilst in prison he was told by his relatives in Zambia that his former business associates who turned out to be criminals from a drug trafficking organization had come looking for him, and when they were told of his imprisonment in Hong Kong, they refused to believe it and instead accused him of stealing the drugs from them and for which they would find him and kill him.     

6.As a result the Applicant became fearful that after he had served his sentence in Hong Kong he would be repatriated to Zambia where he would be harmed or killed by the drug trafficking organization or by the Nigerian authorities for being involved in MASSOB if he is refouled to Nigeria, and so he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 26 March 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

7.By a Notice of Decision dated 26 April 2018 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”).

8.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 the drug trafficking organization in Zambia or from the Nigerian government respectively upon his return to Zambia or Nigeria as low due to the absence of past ill-treatment from them, that it was incredible that the drug trafficking organization was not aware of his arrest in Hong Kong and that there is no reason why they would still want to go after him well knowing that he was in prison and that the drugs had been confiscated by the police, that there is absolutely no evidence that he had ever been pursued or targeted by the Nigerian authorities during all those years before he was eventually arrested in Hong Kong, that in the absence of 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 (“COI”) show that reasonable internal relocation alternatives are available in Zambia and Nigeria with large population spread across vast territories that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other parts of either country away from his home district in large cities where it would be difficult if not impossible for his perceived enemies to locate him.

9.The Applicant then 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 26 November 2018 before the Board during which he was however only willing to confirm his case as contained in the hearing bundle and declined to give further evidence or to answer any questions from the Adjudicator in respect of his claim despite being advised to do so in particularly as to the credibility issue over his claim.  On 6 December 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found in the absence of any oral evidence or answers to questions raised of his case from the Applicant that the many concerns and problems over the credibility of his claim identified in the decision remained unanswered or dealt with satisfactorily by the Applicant that it did not accept that he had ever been involved with MASSOB or that the Nigerian authorities would have any adverse interest in him, nor did it find credible that the drug trafficking organization would not be aware of his arrest in Hong Kong and that the drugs had been confiscated by the police that they would still be looking for him in Zambia or Nigeria or to have any reason to go after him upon his release from prison that his claim for non-refoulement protection in Hong Kong failed on all applicable grounds.     

11.On 28 December 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, 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 is not satisfied with the decision but without providing any particulars or elaboration as to why or put forward any other grounds for his intended challenge, nor did he request for any oral hearing for his application.

12.However, but a letter dated 25 May 2020, the Applicant put forward what he called “Additional Grounds” in support of his application as follows:

(a)     that the Director and the Board reached their decisions wrongly in assessing his non-refoulement claim which were not reasonable or fair;

(b)     that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in his case which led to an unfair outcome of rejecting his non-refoulement claim that he was liable to be killed by gangsters for which the state would be rendered liable to him by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(c)     that the Adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on the COI but failed to take the Applicant’s personal experience into account;

(d)     that the Director failed to consider or give enough weight to those listed relevant COI which supported his aversions that the police in both his countries would not be able to protect; and

(e)     that the Director failed to take into account or give sufficient weight to the fact that corruption and incompetency of the administration in his countries is still a very serious problem which various human rights organizations had compiled reports which stated testament to his assertions and was therefore a clear case of unfair attitude shown by the Director which is in itself enough to render his decision void.   

13.These are however just broad and vague assertions of the Applicant containing several keys words and phrases without any particulars or specifics or elaborations as to how they apply to his case, or how the Director or the Adjudicator had erred in their decisions, or what relevancy was state acquiescence to his case, or in what way did they fail to take into proper account or consideration of the relevant COI in their assessment of his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, 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 him, I do not find any reasonably arguable basis for his intended challenge.

14.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.

15.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 19 – 29 of its decision in the absence of any evidence during his appeal hearing to clarify and resolve the credibility issues raised of his claim, and given no error of law or procedural unfairness in his process before the Board or in its decision has been clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for him to challenge the finding of the Board.   

16.Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim from the drug trafficking organization is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Zambia or Nigeria, a decision also confirmed by the Board, 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.I should also note that earlier on 7 May 2020 the Applicant wrote to the court and raised a new basis for his non-refoulement claim which was never made before the Director or the Board: essentially that if deported to Nigeria, he will face a serious risk of prosecution and punishment under the Nigerian law for his same offence of drug trafficking which led to his subsequent conviction and incarceration in Hong Kong, thereby violating his right against being subject to double jeopardy which may amount to cruel inhuman or degrading treatment or punishment (“CIDTP”), and hence BOR 3 risk.

18.Apart from the fact that, as noted above, this ground has never been raised in his claim to the Director or the Board and hence should not be allowed to do so in the present application, but even if it had, it would not in my judgment advance his case any further, as the right of not to be subjected to double jeopardy has been held as neither non‑derogable nor absolute by the Court of Final Appeal in Ubamaka Edward Wilson v Secretary for Security & Anor (2012) 15 HKCFAR 743, a case which also involved an applicant from Nigeria who challenged the validity of the deportation order made against him on various bases including being faced a risk of re-prosecution and punishment if deported to Nigeria for the same drug trafficking offence which had led to his conviction and incarceration for 16 years in Hong Kong.

19.That appeal in essence raised various issues concerning the constitutionality, scope and effect of the reservation concerning immigration legislation contained in section 11 of the HKBOR which provides: “As regards persons not having the right to enter and remain in Hong Kong, this Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation.”

20.In the leading judgment for the court, Ribeiro PJ found that section 11 precluded reliance on the double jeopardy ground as such right was neither non-derogable or absolute, as His Lordship stated in §162:

“ The appellant’s challenge to the deportation order founded on BOR art 11(6) must fail. Section 11 precludes reliance on that provision. The right which it protects, namely, the right not to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of Hong Kong is neither non-derogable (not being mentioned in s 5) nor absolute.”

21.In addition, His Lordship also found that the double jeopardy ground did not avail the appellant as it only applied within the territorial limits of Hong Kong, and that his case on CIDTP based on the double jeopardy ground also fell far short of meeting both the requirements of establishing (a) that the ill-treatment which he would face if expelled attained what had been called “a minimum level of severity” which generally involved actual bodily injury or intense physical or mental suffering and (b) that he faced a genuine and substantial risk of being subjected to such mistreatment.

22.In the present case, there is simply no such evidence from the Applicant either before the Director or the Board or even now.  As such and for the similar reasons given above, this double jeopardy ground would have failed had it been raised by him before the Director or the Board, and will not avail him in his present application now before me.

23.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.

24.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 4^th day of June 2020. 

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