Case Document

100%Judiciary

HCAL 1815/2018

[2020] HKCFI 1469

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1815 of 2018

BETWEEN

	Enogieru Stanley	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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

Following;

	consideration of documents only; or
	consideration of documents and oral submission by the Applicant in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 20 July 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 10 October 2019.

3.Leave was granted to the applicant to amend Form 86 by adding the Board as proposed respondent and by deleting the Immigration Department and replacing it with the Director of Immigration (“the Director”) as interested party.

The applicant

4.The applicant is a Nigerian national. He had come to Hong Kong by using someone else’s passport. He was permitted to stay as a visitor until 16 February 2010. He overstayed and surrendered to the Immigration Department on 7 February 2011. He submitted a claim for protection against torture on 5 May 2011. He married with a Hong Kong resident on 7 June 2014 and submitted a dependent visa application on 23 June 2014.

5.He claimed that if refouled, he would be harmed or killed by members of a city social group in Nigeria and Muslims in Gambia.

6.The incidents took place as set out below.

a.     His father passed away in January 2001. After two years, there came a group of people, whom he had no idea, and evicted the family for the reason that his father was indebted to them.

b.     They rented a house nearby where they stayed for two years.

c.     Then someone called Uncle Ben came to them and said that he was a good friend of his father. He advised them to leave the country or the Group would put them into jail.

d.     They moved to live in Gambia. Ultimately, he left Gambia for Hong Kong.

The Director’s Decisions

7.The Director considered his application in relation to the following risks:

a.     torture risk under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”);

b.     Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.     risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.     risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.By Notice of Decision dated 24 June 2015 and Notice of Further Decision dated 4 November 2016, collectively called the “Director’s Decisions”, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that his alleged risks were not real and state protection and relocation were available to him. See paragraphs 31-34 and paragraph 6 of the respective Director’s Decisions.

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decisions. He attended a hearing before the Adjudicator on 23 November 2016 and 18 October 2017 respectively.

10.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decisions.

11.The Board considered the applicant’s evidence and was of the view that the applicant was a witness with damaged credibility telling a story which sounded like fiction [56]. Even if his story were true and if the Group existed, it was in 2005 and nothing was known about it in 2017 [57].

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 3 September 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affidavit in support of this application, he did not state that the Board had committed any error in reaching its decision. He only said that he would be subjected to torture and ill-treatment if he were sent back to his own country.

DISCUSSION

14.The applicant appeared before me and he confirmed that he was free to express his views before the immigration officer and before the Board. He could read the Decisions himself.

15.However, he submitted a piece of paper on which he stated additional grounds in support of his application. He submitted that he has been staying in Hong Kong for 10 years and now he has a family in Hong Kong. He further said that the Board did not understand fully his situation and it did not understand the situation in Nigeria; it did not prove whether the group still exists and it could not give him the guarantee that he would be safe if he returned to Nigeria.

16.I do not find any of his reasons attractive. The Board did not believe the facts of his case. As such, he has no factual basis in support of his case. The Director had considered state protection would be available and internal relocation would be an option open to him.

17.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

18.The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

19.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application.

Dated the 10^th day of July 2020

	(Mike Mak)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 10/7/2020 Enogieru Stanley Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 10/7/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 1830/15/7/14/NI36 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 513/15 & RBCZ 9000035/16 (Formerly RBCZ 510/11) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)