Case Document

100%Judiciary

HCAL 1237/2018

[2021] HKCFI 590

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1237 of 2018

BETWEEN

	Nwadobe Chinatu Elvis	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 Applicant being absent 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 26 January 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). This application is over three months from the date of the Board’s Decision and is late as Form 86 was filed on 29 June 2018. I shall deal with this issue below.

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.The applicant is a Nigerian national. He came to Hong Kong on 27 February 2011 on a fake passport, which was revealed upon his arrest on 10 September 2012 by police. On 13 September 2012, he lodged his Torture Claim under the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (“Torture Convention”). His Torture Claim was rejected on 19 February 2013 and on appeal, his appeal was dismissed by the Board on 10 April 2013.

5.He claimed that if refouled, he would be harmed or killed by the Boko Haram, which is responsible for bombing churches, National Youth Service Corps and the United Nations head office. The Boko Haram opposed to the first Christian president, Goodluck Jonathon. The government was unable to do anything to protect its capital or take any action against the Boko Haram. He considered that his life would be in danger if he returned to Nigeria. This is the reason for him to leave Nigeria for Hong Kong. Details can be found in paragraph 35 of the Board’s Decision.

The Director’s Decisions

6.Having rejected his Torture Claim, the Director considered his application in relation to the following risks:

a. 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”);

b. 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

c. 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”).

7.By Notice of Decision dated 19 February 2013 (“the Director’s Decision”), the Director refused his claim for the reason that the Board did not accept his claim as acceptable as he did not raise his concern with the authority in Hong Kong when he first landed, which is inconsistent with what he alleged [page 8]; that there was no official involvement [page 6]; that there was no real risk of torture upon his return and state protection was available to him [page 7]. By Notice of Further Decision dated 20 April 2017 (“the Director’s Further Decision”), the Director reject his claim on BOR 2 risk because it was not accepted that he would a target of Boko Haram for reason of his religion and/or his fear of ill-treatment by them was well-founded. [38]

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision and Further Decision. He attended the hearing before the Board on 27 October 2017.

9.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision and Further Decision for the reasons as set out below.

(1) The Board found the applicant’s evidence not credible, taking into consideration of his fraudulent and deceptive conduct in coming to Hong Kong, his repeated avoidance of the Hong Kong immigration authorities, the exaggerated or manifestly unfounded nature of some of his claims and his failure to raise others in any timely manner. [127]

(2) The Board did not accept that the applicant would face more than a remote possibility of being targeted by the Nigerian authorities if he returned there in the reasonably foreseeable future, whether for reason of his race, his imputed political opinion, or for any other reason. [133]

(3) For the reasons above, the Board rejected his claim on BOR2 risk, BOR3 risk or Persecution risk. [136-139]

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 29 June 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmations in support of his application, he said that his life would be in danger.

DISCUSSION

12.As mentioned in paragraph 1 above, the applicant’s application is late. The Court of Final Appeal in H v Director of Immigration & AH v Director of Immigration [2020] HKCFA 22, 14, July 2020, Fok PJ held:

“… a judge cannot proceed with an out of time application for leave to apply for judicial review without considering whether there is good reason to extend time for the making of the application, his decision on that particular issue is not a discrete decision separate to his decision whether or not to grant leave to apply for judicial review. … the aspect of delay is intrinsically bound up with the question whether leave to apply for judicial review should be granted… since the merits of the substantive application is one of the factors relevant to the question of whether there is good reason for extending time to apply (see [37(2)] above), it would be highly artificial to treat a decision on an extension of time application as separate and discrete from the decision to grant or refuse leave to apply.” [39]

I shall therefore consider the merit of the applicant’s case.

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. See paragraph 9 above.

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

“13.… …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.”

15.His ground in support of this application is only his opinion without any evidence or specific in support of it. It does not assist his application.

16.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17.There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

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

Dated the 12^th day of March 2021

	(M. O. WONG)(Ms)
	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 12 March 2021 Nwadobe Chinatu Elvis 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 12 March 2021 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 7049/17/5/55/NI138 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1156/12 (Formerly RBCZ /909/12); QA T/C 627/16 (Formerly RBCZ/2002335/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)