Case Document

100%Judiciary

HCAL 512/2021

[2021] HKCFI 1425

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 512 of 2021

BETWEEN

	Mutale Martin, alias Ogbonna Emmanuel Ikechukwu	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 4 March 2021 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). He is now being detained by the Immigration Department.

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 was born in Zambia. His father was a Nigerian and his mother was a Zambian. He had moved together with his parents to Nigeria when he was around two years old. He had been living in Enugu of Nigeria and last in Anambra of Nigeria before he left for Zambia in around September 2009. He last came to Hong Kong on 5 September 2010, the same day he was arrested by the Customs and Excise Department for trafficking in a dangerous drug. He was convicted and sentenced to 14 years’ imprisonment. On 1 November 2018, he lodged his non-refoulement with the Immigration Department.

5.He claimed that if refouled, he would be endangered by the Nigerian government because of his association with the political group MASSOB. Further he believes that he would suffer from harassment or actual injury in either Nigeria or Zambia because of his being a gay man.

6.MASSOB is political organization with the objective to seek for independent state of Biafra from Nigeria and he was an active member. His duty was to solicit support from the youth and persuade them to join it. He organized and took part in protests and processions. He had been arrested and detained by police. On one occasion, he was tortured by police officers in the police station. He was hung upside down and beaten with baton. He was not allowed to see his family members or lawyer. The police did not provide him with any medical treatment or meal. He was released because the police were bribed by his brother or other members of MASSOB. He knew that the Nigerian police were looking for him. He fled Nigeria for Thailand where he stayed for some time. He met the drug traffickers there. They asked him to traffic dangerous drug for them. That is why he took dangerous drug from Thailand to Hong Kong where he was arrested and sentenced for 14 years’ imprisonment.

7.He is a gay person and had developed a relationship with another male friend in Nigeria. Their relationship was kept in secret as it was a taboo in Nigeria. He had lost contact with him since 2015. However, his gay relationship was not discovered. He had witnessed gay people being stoned to death or poured with acid in Nigeria on many occasions. He believes that if he reveals himself as a gay man in Nigeria or Zambia, he will be killed.

The Director’s Decision

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

a. risk of torture under Part VII C 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”).

9.By Notice of Decision dated 25 September 2019 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that there was no substantial risk of him being ill-treated or killed upon his return to Nigeria or Zambia [24]; that his low level of involvement and his long absence of association with MASSOB was indicative of his low risk [26]; that there was no evidence to show that he was targeted by police in Nigeria [27]; that though homosexuality was illegal in Nigeria and Zambia, the Nigeria government seldom enforce the law and both Nigeria and Zambia had NGOs to give support to sexual minority members [34] and internal relocation was still an option open to him [36].

The Board’s Decision

10.The applicant appealed against the Director’s Decision. He was legally represented before the Board on 29 May 2020.

11.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons that his evidence on the story of MASSOB association and his being gay was rejected [56-61]; that even assuming that his story was true, he was not entitled to non-refoulement under each of the statutory provisions [62-68] and internal relocation was an option open to him [72].

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 12 April 2021 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, he raised grounds of objection against the Director and the Board. The applicant cannot apply for leave to apply for judicial review of the Director’s Decision once he had appealed the Director’s Decision to the Board. Re: Moshsin Ali [2018] HKCA 549 (CACV 54/2018) §13. Those complaints against the Board should have been brought by his legal representative to the Board for its consideration. I shall therefore consider his complaints against the Board. He said that the Board reached the decision wrongly in assessing his claim and the decisions were unreasonable and unfair (as required by the Wednesbury test); BOR 2 risk must be protected and that the adjudicator failed to give him sufficient time and chance to arrange relevant evidence to his claim and appeal.

DISCUSSION

14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.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.”

16.His grounds in support of this application do not assist his application. At the appeal, he was legally represented by the duty lawyer. In the Board’s Decision, there is no record that his lawyer had raised the issue of insufficient time for the preparation of the appeal. The other grounds are his opinions without specifics or evidence in support of them. The fundamental basis for the Board’s Decision is that the Board rejected his evidence on the facts of his claim. Therefore, the applicant simply has no factual basis to support his claim.

17.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.

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

CONCLUSION

19.I therefore refuse to grant leave for the applicant to apply for his intended judicial review. Accordingly, I dismiss his application.

Dated the 26^th day of May 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 26 May 2021 Mutale Martin, alias Ogbonna Emmanuel Ikechuku 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 May 2021 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 16352/19/10/1/ZMB/NI1 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 469/19 (Formerly RBCZ 108/19) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)