Case Document

100%Judiciary

HCAL 1727/2018

[2020] HKCFI 874

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1727 of 2018

BETWEEN

	Chukwuemeka Ndubisi Anthony	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:

(1) Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 24 October 2017 be refused; and

(2) Application for leave to apply for judicial review be dismissed.

IT IS FURTHER DIRECTED that:

(1)   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;

(2)   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;

(3)   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;

(4)   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

(5)   Liberty to apply.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 24 October 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.Leave was granted to the applicant to amend Form 86 by deleting the Director of Immigration (“the Director”) as respondent and by adding the Director as interested party.

The applicant

3.The applicant is a Nigerian national. He came to Hong Kong on 16 October 2015 as a visitor and was permitted to stay until 30 October 2015. He overstayed and was arrested by police on 4 February 2016. He was referred to the Immigration Department. He lodged his non-refoulement claim on 15 April 2016

4.He claimed that if refouled, he would be harmed or even killed by his uncle because he was unable to pay back the sum of money to his uncle. The sum of money was US20,000, which his uncle asked him to put into the bank for him. Whilst he was on his way, he was robbed of the money. His uncle did not believe that he was robbed of the money and demanded him to repay him the money. He did not have the money for his uncle. He avoided his uncle by living in his friends’ places. However, he was tracked down by 5-6 people sent by his uncle. They took him to a silent place where they beat him up with sticks and bare hands. He was injured. His friends assisted him to come to Hong Kong on a forged passport.

The Director’s Decisions

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

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

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”).

6.By Notice of Decision dated 9 September 2016 and Notice of Further Decision dated 5 June 2017 (“the Director’s Decisions”), the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of risks as alleged was low [42]; that state protection was available to him [44] and internal relocation was an option open to him [45]. His claim under BOR2 risk was not established.

The Board’s Decision

7.The applicant appealed to the Board against the Director’s Decisions. He attended a hearing before the Adjudicator on 29 June 2017.

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

9.The Board considered the applicant’s evidence and found that the applicant had given inconsistent evidence before the immigration officer and the Board; that he was unable to give details to the incidents he claimed happened; that he was unable to explain why he had given contradictory evidence to the immigration officer and the Board. It finally came to a conclusion that he was not a truthful witness and that no credence could be attached to any of his claims. See §§23-35 of the Board’s Decision.

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 23 August 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he did not set out the grounds in support of his application. He did not say what error the Board had committed in coming to its decision.

DISCUSSION

12.The applicant appeared before me. He confirmed that he was treated fairly before the immigration officer and the Adjudicator of the Board. His lawyer had explained the Director’s Decision to him. He said that he was not clear about the Board’s Decision. I therefore explained the Board’s Decision to him and asked if he had any comments on the Board’s findings. He said that he was still in fear of his safety if he returned to his country.

13.His application for leave to apply for judicial review is late – the Board’s Decision is 24 October 2017 and his application was filed on 23 August 2018. In Re Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, 23 July 2018, §28, the Court of Appeal held that the applicant cannot proceed with the application for leave for judicial review without extension of time for them to file their application out of time.

14.In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.

15.In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

16.There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusion on the facts of the case.

17.The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

18.I therefore refuse to extend time for him to apply for leave to apply for judicial review. Accordingly, I dismiss his application.

FURTHER DIRECTIONS

19.It is further directed that:

a.     If the applicant intendsto 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;

b.     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;

c.     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;

d.     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

e.     Liberty to apply.

Dated the 21^st day of May 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 21/5/2020 Chukwuemeka Ndubisi Anthony 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 21/5/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 4975/16/9/354/NI109; Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1597/16 (formerly RBCZ 11420/16) & RBCZ 9001915/17 Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)