Delai Taitusi Camaivuna v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2990/2018

[2021] HKCFI 2186

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2990 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 the Applicant in open court.

Order by Deputy High Court Judge P. Li:

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

and

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

Observations for the Applicant:

1.On 28/12/2012, the applicant came to Hong Kong.  He was allowed to stay until 28/3/2013.  He went to Macau on that day and returned on the next day.  He was allowed to stay until 11/4/2013.[1]  He surrendered to the Immigration Department on 17/4/2013 for overstaying.  He filed the non-refoulement claim in this case on 27/2/2014.  

2.He was convicted of illegal employment on 15/7/2016 while on recognizance.  He was sentenced to imprisonment for 15 months.

3.He feared that if he returned to Fiji, he would be harmed or killed by the government of Fiji as he was a member of SDL[2]. He had participated in the incident against the government in 2000.

4.His claim was dismissed by the Director on 26/1/2017.  His appeal to the TCAB was rejected on 8/12/2017.  He filed a leave application for judicial review on 27/12/2018.  He was about 9½ months out of time.

Background

5.The applicant was born on 29/12/1963 in Nadi, Fiji.  He was educated up to secondary level.  He had worked for 13 years as a labourer.  He was single with 3 siblings living in Fiji.  His parents had passed away.  He had never been charged, arrested or imprisoned in Fiji.

6.About 2000-2001, he was elected the leader of SDL in a suburb of Suva City with around 25,000 supporters.[3]  There were 10-15 leaders of SDL in Suva City.

7.In 2000, there was an incident that the indigenous Fijians occupied the parliament complex in Suva City for 40 days.  They protested against the land policy of the government.  He joined the protest and had meetings with others inside the complex.  After a meeting with the government, he and others surrendered their weapons.  All hostages were released.  But the government sent soldiers to crack down the protest.  He managed to escape.  Many protesters including his best friends were arrested and tortured.  Some even died. Those representatives who attended the meeting were eventually imprisoned.  To retaliate, he and others led a mutiny plotting to kill the commander of the military force.  It was not successful.  The soldiers looked for him at his brother’s house in Nadi.  He thus moved to Tailevu to stay with his cousin.  He did not sustain any injury during this incident.

8.In 2001, the SDL political party was formed.  It won the election in 2006.  However, there was a military coup in 2006. [4]  The military government tried to arrest SDL members all over Fiji.  However, he was not arrested nor ill-treated.  He was safe throughout 2001-2006.

9.Around 2012, he paid $15,000 Fijian dollars to an agent for arranging him to leave Fiji.  He intended to go to South Africa.  The agent failed to honour the agreement.  He had to stay in Hong Kong.  He admitted that the original plan was for him to work in South Africa.[5]

10.During his stay in Hong Kong, he contacted officials in the Fijian Embassy.  Despite his fear of the government, he thought the officials might be able to advise him.[6]

11.In 2015, the military government won the election again.  He did not think it was safe for him to return to Fiji.

12.He encountered no problem in obtaining a passport in 2004.  He had no problem leaving Fiji in 2012 although the security people questioned him.

13.There was no protection from the police as they were controlled by the ruling party—the Fiji First Political Party.  The Ombudsman was also under its influence.

14.He would decide relocating to other provinces if he had to return to Fiji.

The decision of the Director

15.The Director pointed out the following to conclude that the future risk of harm was low:

(a)  From 2000—2012, he was not ill-treated by the government or its officials.  He had never been arrested.  The action of the government against him was apparently lawful given his involvement in the occupation of the parliament complex.  This showed that there was no real intention to harm him.

(b)  He was able to obtain a passport and left Fiji through normal channels.  He was not targeted by the government.  His asserted fear of harm was too farfetched.

(c)  There was no evidence that he was personally targeted when the government tried to arrest SDL members in 2006.  He was safe throughout all these years.  It was not a personal real risk of harm.

(d)  He contacted officials of the Fijian Embassy in Hong Kong for advice.  This was inconsistent with his fear of the Fijian government.

(e)  The applicant fled Fiji for fear of arrest and prosecution as he was involved in the occupation of the parliament complex in 2000.  Given the COI, there was no evidence that he would be deprived of a fair trial.

16.There were reports of a military coup in 2006.  There was suppression by the military force.  In 2009, the military government cracked down on dissent.  Many indigenous people were tortured.  The security forces were not held accountable.  There were serious human rights abuses.  However, the Director also found that after the 2014 general election, civil authorities regained effective control over the security forces.  The multinational observer group deemed the election credible.  The government had taken steps to end corruption, promote economic growth and ease racial and religious tensions.  There was significant progress on human rights situation.  The courts generally enforced the rights of defendants.  The Legal Aid Commission and NGO provided legal advice and counsel for defendants.  The Office of Accountability and Transparency was tasked to investigate mal-administration.  The Director concluded that there was reasonable State protection.

17.The Director rejected all the claims on 26/1/2017.

The decision of TCAB

18.The adjudicator held a hearing on 29/9/2017.  She rejected the appeal on 8/12/2017.  She did not find the applicant reliable.  She did not accept that the applicant was a target of the Fiji government.  Given that there was a lapse of 17 years since the incident in 2000, it was unlikely that his fear would materialize.  The reasons were:

(a)  During the hearing before the TCAB, the applicant admitted he was not involved in the military coup in 2006.  He stayed with his dying father at the western part of Fiji. The adjudicator concluded that he was no longer active in the activities of SDL.

(b)  Although the applicant was on the stop list, however, he had friends in the government who helped him to obtain a passport.  He also knew the supervisor at the airport who allowed him to leave.  The adjudicator found this a convenient excuse.

(c)  The applicant could only give an outline of the events during the incident in 2000. There was no detail.  He was not injured.  He was not arrested.  He could leave Fiji through proper channels.  All these showed that he was not in a leading role as he asserted.

(d)  The adjudicator had considered various COI.  She agreed with the Director that the Fiji government was able to provide reasonable State protection.  This would alleviate the risk of harm even assuming there was a real risk.

(e)  There was no torture or ill-treatment of the applicant.  He failed to prove that the fear of harm would materialize.  The Fiji government took action against the applicant who participated the incident in 2000.  It appeared a lawful action.  The applicant was not entitled to non-refoulement protection as he was a fugitive from justice.  In any event, he was able to leave Fiji with a valid passport.  He was not targeted.

(f)  There were reasonable options for internal relocation.  He was save in Tailevu, Nadi and Lomaiviti according to his evidence.

Judicial review

19.The applicant applied for leave to apply for judicial review on 27/12/2018.  In his supporting affirmation, he disagreed with the decision of the TCAB.  The applicant stressed that his life was still in danger.

20.In judicial review, this court decides whether there is any error in law and procedures.  Whether the decision of the TCAB is irrational.  Finding of facts is the duty of the TCAB.  In general, this court would not interfere.

21.I agree with the adjudicator.  The applicant is not credible.  His evidence lacks detail.  In my judgment, there is no error of law or procedure.  The TCAB decision is reasonable.

22.The applicant was out of time in filing the leave application by about 9½ months.  The applicant should have applied for extension of time.  He did not provide any explanation for the delay.  In considering whether there is good reason for the delay, I have considered the length of the delay, the reasons for the delay, the merits of the substantive application and the prejudice to the putative respondent if extension was granted. [7]

Conclusion

23.There is no explanation for the substantial delay.  The substantive application is of no merit.  In the circumstances, there is no good reason for extending the time for the leave application.

24.I refuse leave for judicial review.

Dated 27^th day of July 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