Nwajiaku Chinonso Hyginus v. Torture Claims Appeal Board

HCAL 1167/2018

[2021] HKCFI 1405

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1167 of 2018

BETWEEN

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:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 8 December 2017 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1.The Applicant is a 41-year-old national of Nigeria who arrived in Hong Kong on 12 January 2014 with permission to remain as a visitor up to 22 January 2014 when he did not depart and instead overstayed and was arrested by police on 25 March 2014.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Nigeria he would be harmed or killed by his half-brother due to disputes over inheritance right of their father’s estate.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Ebenator, Nnewi, Nigeria.  After leaving school he worked as an electrician in his home village.

3.In 2007 his father died leaving an estate consisting of lands and properties, of which his elder brother insisted that being the eldest male in the family he should be entitled to inherit the entire estate, but which the Applicant objected and led to serious disputes between them over the years, and in 2010 when his elder brother started to make death threats against him and was coming after him with armed men, the Applicant became fearful for his life and fled to Lagos, and from there he departed Nigeria in January 2014 for Hong Kong where he subsequently overstayed, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 27 February 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.By a Notice of Decision dated 24 March 2017 the Director of Immigration (“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”).

5.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 brother upon his return to Nigeria as low due to the absence of or low intensity and frequency of past ill-treatment from him, that it was a private family dispute between them 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 (“COI”) show that reasonable internal relocation alternatives are available in Nigeria with a large population of 186 million people spread across a vast territory of more than 920,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of Nigeria away from his home district in large cities such as Lagos where it would be difficult if not impossible for his brother to locate him.

6.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 29 August 2017 before the Board during which he gave evidence of a new claim of fear of discrimination by the Nigerian authorities as an indigenous Igbo in his home country.  On 8 December 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found some inconsistencies in the Applicant’s evidence as to his disputes with his brother over their father’s estate but accepted that whatever threats from his brother that in the absence of any official involvement that state/police protection would be available to the Applicant upon his return to Nigeria as well as reasonable internal relocation for him to move safely to other areas away from his home district without any risk of being located by his brother, while his new claim of fear of risk of discrimination from the Nigerian authorities as an indigenous Igbo was not supported by any evidence of any personal experience, and that relevant COI show that there are new systems in place in Nigeria to protect the Applicant’s rights that it concluded that he failed to establish his claim under any of the applicable grounds.     

8.On 22 June 2018 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 mainly repeated his claim that his life is still in danger in his home country, and complains that the Board’s decision was made in such a quick and summary manner only 2 days after his intensive screening interview before the immigration officer that it was unfair and irrational.

9.By then the Applicant was however out of time with his leave application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 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.

10.As the last day of the three-month period for him to file his Form 86 fell on 8 March 2018, the Applicant was some 3 ½ months late with his application, and in considering whether to extend time, the court shall 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: AW v Director of Immigration [2016] 2 HKC 393.

11.In the Applicant’s case, a delay of 3 ½ months must be considered as very substantial or excessive, for which he explained in his affirmation that he was not aware of his right to challenge the Board’s decision until later when he was advised by his friend to do so by way of judicial review, but by then he was already out time with his intended challenge.

12.Ignorance of the law cannot of course be accepted as a valid reason for such serious delay, and as the record shows that the decision was sent on the same day to the Applicant’s last reported address without being returned through undelivered post, I do not see any good reason for his serious delay.

13.As for the merits, if any, of his intended application, as noted above the Applicant has essentially put forth one ground, i.e. that the decision was unfair and irrational as it was made only 2 days after his screening interview before the immigration officer, thereby implying that the decision was rushed without proper or careful consideration of all the relevant evidence and materials provided by him for his claim.

14.However, it is clear that the Board’s decision dated 8 December 2017 was in fact made more than 3 months after his appeal hearing took place before the Board on 29 August 2017 instead of just 2 days as asserted by the Applicant, and if he were actually referring to the Director’s decision of 24 March 2017, which was indeed made just 2 days after his interview was conducted before an immigration officer, but given the fact that the Applicant had already set out his claim in his NCF submitted to the Director one month earlier on 27 February 2017, and with the details of all those materials set out in the Director’s decision in the consideration and determination of his claim which was essentially a straight forward localized family dispute on the basis of the Applicant’s own case, and in the absence of any error as to the law or facts regarding his claim being clearly and properly identified by the Applicant, I do not find anything amiss in the decision being made 2 days after the screening interview, nor do I find this ground of the Applicant reasonably arguable for his intended challenge.

15.In any event, the fact that the Applicant had proceeded to bring an appeal to the Board against that decision of the Director, of which the Board had subsequently made a final decision regarding his claim, and as such the decision of the Director has been superseded by the Board’s decision, it is no longer susceptible to judicial review: see Re Moshsin Ali [2018] HKCA 549.

16.As regard the Board’s decision, as noted above the Applicant has not raised any complaint or ground for his challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not see any reasonably arguable basis to challenge its finding either.         

17.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

18.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other areas of Nigeria, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

19.In the premises and 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 or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

20.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his delay, I refuse to extend time and accordingly dismiss his leave application.

Dated the 18^th day of May 2021.

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

Form CALL-1