Mgbenka Kingsley Onyekachi v. Torture Claims Appeal Board

HCAL 156/2018

[2020] HKCFI 883

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 156 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:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 3 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 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 36-year-old national of Nigeria who arrived in Hong Kong on 28 May 2011 with permission to remain as a visitor extended to 18 June 2011 when he did not depart and instead overstayed and was arrested by police on 9 July 2011. 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 his paternal uncle over certain dispute and/or by some unhappy customers.  He has since been released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Isseke, Anambra, Nigeria.  After his parents’death he was raised by his paternal uncle in Lagos, and later worked in his uncle’s mobile phones business in Lagos where he eventually became the purchasing manager.

3.Later he came to suspect that his uncle may have something to do with his parents’death as his uncle coveted his father’s land and had casted certain magic spell to prevent the Applicant from inheriting his father’s land, but as he was a Christian protected by God and was blessed with spiritual power that his uncle had not been able to harm him with his black magic, but in 2003 his uncle accused him of stealing money from the business and beat him with barbed wire that injured his left forearm badly and left it with a scar.

4.One day in 2011 he had an argument with two customers over the packing of their goods during which they made death threats against him.  The Applicant was afraid and sought his uncle’s help, and to avoid further threats from these two customers, his uncle therefore sent him to Hong Kong in May 2011 to purchase goods for the business, but after the Applicant had purchased the goods with his own money and sent them to his uncle in Nigeria, he called his uncle to remit money to reimburse him in Hong Kong, but when his uncle refused, they had a heated argument on the phone during which his uncle threatened to kill him upon his return to Nigeria.

5.Fearing for his life, the Applicant therefore did not depart Hong Kong and instead overstayed until his arrest by the police when he raised his torture claim which was later taken as a non-refoulement claim upon the commencement of the Unified Screening Mechanism, for which he completed a Non-refoulement Claim Form on 29 June 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 27 November 2015 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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 all the relevant circumstances of the Applicant’s claim and found that it was fraught with credibility issues, unconvincing and improbable to be true of his accounts of his feud with his uncle that his uncle attempted to kill him with black magic but his possession of spiritual power and immunity from harm from his uncle that it was not accepted that he will face any real risk of harm from his uncle or anyone else upon his return to Nigeria, that in the absence of official involvement that state or police protection would be available to the Applicant if resorted to, and that reliableand objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Nigeria with a large population spread across a vast territory 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 where it would be difficult if not impossible for his uncle or unhappy customers to locate him.

8.By a Notice of Further Decision dated 23 January 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicablegrounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

9.By then the Applicant was already in the process of appealing to the Torture ClaimsAppeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 9 December 2015, but for which he failed to attend the scheduled oral hearing on 20 February 2017 without any explanation, and in the absence of any further response from him the Board decided to proceed to deal with his appeal without further hearing andin his absence.  On 3April 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board made no finding as to the credibility of his claim in the absence of his attendance in his appeal hearing, but on the basis of the materials available it found that he has not suffered any injury or harm either from his uncle or the unhappy customers that had attained the minimum severity under any of the applicable grounds, that in any event there are many places in Nigeria where the Applicant as an able-bodied young man can safely relocate and where it is unlikely that his uncle or the unhappy customers would have any interest or desire or resources to locate him, and concluded that there is nosubstantial risk or fear for him to return to Nigeria to warrant any non-refoulement protection in Hong Kong.  

11.On 2 February 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 repeated his claim that his life is still in danger in his home country and that he would like the court to review his claim.

12.By then he was however 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.

13.As the last day of the three-month period within which the Applicant was to file his Form 86 fell on 3 July 2017, he was therefore seven 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) 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 seven months must be regarded as very substantial or excessive, for which he did not provide any explanation in his affidavit, nor did he attend the hearing of his application without any explanation.  As such I am unable to find any good reason for his such serious delay.

15.Nor, as noted above, did he put forward any arguable ground for his intended application, and in the absence of any legal error or procedural unfairness being shown by the Applicant, or any complaints or particulars from him that the decision may in any way be considered unfair or unreasonable, while the latest news and information about current situations in Nigeria were never raised before the Director or the Board and are wholly irrelevant to his claim of risk of harm from his uncle or unhappy customers.  As such I am unable to find any reasonably arguable basis to challenge the finding and decision of the Board.

16.Furthermore, on the basis of even his own case, the Board and for that matter the Director as well were entitled to find and establish in their decisions 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 conclude that 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 serious delay, I refuse to extend time and accordingly his application is dismissed.

Dated the 16^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