Case Document

100%Judiciary

HCAL 2334/2018

[2021] HKCFI 234

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2334 OF 2018

BETWEEN

	Johnson Kelvin I	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 the documents only; or

consideration of the documents and oral submission by the Applicant in open court.

Order by Deputy High Court Judge C P Pang:

1. Extension of time to apply for Judicial Review be refused; and

2. Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review. The Director of Immigration (“the Director”) refused the applicant’s claim of non-refoulement protection. The Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) dismissed his appeal against the decision of the Director.

2.The applicant, born in 1989, is a national of Liberia. He left Liberia in February 2016 to Ghana, where he stayed for two months, then Togo and Nigeria. He arrived in Hong Kong on 15 April 2016 and was permitted to remain until 29 April 2016 as a visitor. He overstayed and remained in Hong Kong unlawfully. On 8 July 2016, he was arrested for overstaying. On 5 August 2016, he lodged a non-refoulement claim.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [3-6] of the decision of the Board. Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by a gang called B2K which had kidnapped him as he refused to join them. He claimed that he associated with the gang but refused to join them. He was hence kidnapped and beaten by them in December 2015. He escaped from being kidnapped through the help of a gang member. He did not report the incident to the police. He received treatment at a local clinic.

The Director’s decision

4.By a notice of decision dated 9 December 2016, Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated. Having taken into account all relevant circumstances, the Director assessed the level of risk of harm as low. He found that state protection is available to the applicant and internal relocation is a viable option for him. The decision covered torture risk^{^[1]}, BOR 2 risk^{^[2]}, BOR 3 risk^{^[3]}, and persecution risk^{^[4]}. The applicant lodged an appeal/ petition to the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) against the Director’s decision.

The Board’s decision

5.The applicant attended a hearing before the Board on 11 April 2018.

6.By a decision dated 1 June 2018, the Board rejected the appeal/ petition confirming the Director’s decision. The Board’s decision covered all applicable grounds.

7.The Board gave detailed reasons for rejecting the applicant’s claim at paragraphs [15-46] of its decision. In a nutshell, the reasons can be summarized as follows:

(1) the applicant’s claim was vague and unsubstantiated. The Board has been unable to find information relating to the existence of B2K and the applicant was unable to explain why there is no information about it [15];

(2) he was unable to explain why someone who kidnapped him would then help him escape [16];

(3) the Board attached no credence at all to the claim to have been kidnapped [17];

(4) he did not seek protection in Ghana, where he stayed for two months, nor in Nigeria, nor did he seek protection of Hong Kong authorities until after his arrest, nearly four months after his arrival. The delay damaged his credibility [18];

(5) it attached no credence at all to the claim that he entered Hong Kong in search of international protection [19];

(6) it did not accept any part of his claim [20];

(7) his claim that the police in Liberia would not provide protection is untested and fanciful [25];

(8) in anyevent, it would be safe for him to move to a different part of Liberia [29-30].

8.Accordingly, the Board dismissed the applicant’s appeal on all applicable grounds.

Application for leave to apply for judicial review

9.The applicant filed a Form 86 on 24 October 2018 for leave to apply for judicial review. In the form, he named “USM” as the proposed respondent and quote decisions of the Director and the Board. I would treat his intended challenge being against the decision of the Board as the Respondent and the Director as an Interested Party.

10.No request for oral hearing has been made. The application is therefore considered on the papers.

11.In the Form 86 and supporting affidavit, the applicant did not set out any grounds for the relief sought.

Discussion

12.The relevant principles regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. In particular, the role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence, country of origin information, 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, procedural unfairness or irrationality in the decision of the Board.

13.When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court will examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director. This decision will only focus on discussing the Board’s decision.

Application out of time

14.It must be pointed out first that the applicant’s intended application for judicial review was made out of time. 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. In considering whether to extend time, the court will have regard to (i) the length of the delay; (ii) the 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; AW v Director of Immigration [2016] 2 HKC 393.

15.The principles have been further explained by the Court of Final Appeal in the recent case of H v Director of Immigration and AH v Director of Immigration FACV 1 and 2 of 2020, at para 37.

16.In this case, even counting only from the 3-month time limit which ended on 1 September 2018, the application to challenge the Board’s decision was late by more than 1 ½ months. The delay was not a short one. The applicant did not request extension of time or give explanation for the delay. I cannot find any good reason for the undue delay.

Merits of the intended application

17.Nevertheless, I will also consider the merits of the intended judicial review. Far from a case with realistic prospect of success, I am of the view that the applicant has no prospect of success at all.

18.In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and rejected his account of primary facts based on the implausibility and lack of evidence in support of his account. On the factual findings, there would be no factual basis in support of any of the applicable grounds. The Board also found that he could seek protection from the police and it would be safe for him to move to a different part of his country.

19.As explained above, the assessments of evidence, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. This court will not interfere with their decisions unless there is a public law ground for the court to do so.

20.The applicant stated no proper grounds of the judicial review in Form 86. He mentioned nothing in the form or in the affidavit to suggest how the Board erred in the public law sense.

21.In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

22.I also agree with the Board that the applicant delayed in lodging the claim for protection after he came to Hong Kong. Such conduct, although not determinative of the claim, was inconsistent with someone in genuine fear for one’s life and safety. It could be taken into account as damaging the applicant’s credibility and adversely affected the credibility of the claim.

23.Both the Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria. They gave the applicant a reasonable opportunity to state his case and enquired into the issues appropriately.

24.There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

25.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, irrational findings, or procedural unfairness in their decisions. Nor do I see any failure on their part to apply high standards of fairness.

26.For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.

Disposition

27.In the absence of good reason for his delay in the application and any merits in the intended application, I refuse to give him extension of time to apply for judicial review. Accordingly, application for leave to apply for judicial review is dismissed.

Dated 4 February 2021

	(Chung Lai Fan, Christine)
	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 4 February 2021 Johnson Kelvin I 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 4 February 2021 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 5588/16/12/235/L3 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2484/16 (Formerly RBCZ 12906/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2] This refers to the risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

Cites 3 cases

Cases cited in this judgment

Nupur Mst v. Director of Immigration