Omambala Tochukwu v. Torture Claims Appeal Board and Another

Case No.HCAL 2392/2019[2020] HKCFI 2082

Court

High Court CFI

Date26 Aug 2020

Judge—

Case Document

100%Judiciary

HCAL 2392/2019

[2020] HKCFI 2082

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2392 of 2019

BETWEEN

	Omambala Tochukwu	Applicant
	and
	Torture Claims Appeal Board	1^st Putative Respondent
	Director of Immigration	2^nd Putative Respondent

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a national of Nigeria who arrived in Hong Kong on 25 August 2015 with permission to remain as a visitor up to 8 September 2015 when he did not depart and instead overstayed, and on 14 September 2015 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Nigeria he would be harmed or killed by a fellow villager over some disputes with his family in his home village.

2.By a Notice of Decision dated 27 November 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 Ordinance, Cap 383 (“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”).

3.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 his fellow villager upon his return to Nigeria as low due to the low intensity and frequency of past ill-treatment from him, that his problems with his fellow villager were some private or personal disputes without 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 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 working experience to move to other part of Nigeria away from his home district in large cities where it would be difficult if not impossible for the villager to locate him.

4.On 6 December 2018 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 25 June 2019 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board. On 26 July 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

5.On 19 August 2019 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 he would be killed if refouled to his home country without putting forward any proper ground for his intended challenge.

6.However, before his application could be dealt with by the court, the Applicant on 27 July 2020 filed an affidavit to request to withdraw his application as “the case that brought him to Hong Kong has settled in his country”.

7.In the premises and as the basis for his claim no longer exists, it would be appropriate for his application to be dismissed rather than withdrawn. Accordingly I dismiss his application.

Dated the 26^th day of August 2020.

(NG Hang-yin)
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 his 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 26^th August 2020 Omambala Tochukwu 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 26^th August 2020 Torture Claims Appeal Board 1^st Putative Respondent’s ref. no.: USM 14737/18/12/94/NI268 Director of Immigration 2^nd Putative Respondent’s ref. no.: Nil. Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1