Akpo Emmanuel Kwami v. Torture Claims Appeal Board

HCAL 2274/2018

[2021] HKCFI 3334

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2274 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 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 1 December 2017 refused; and

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

Observations for the Applicant:

1.The Applicant is a 52-year-old national of Nigeria who arrived in Hong Kong on 7 December 2004 on the strength of a Ghanaian passport and was given permission to remain as a visitor up to 12 March 2005 when he did not depart and instead overstayed until 5 February 2009 when he was arrested by police.  After he was discharged from his 3-month imprisonment for breaching his condition of stay in Hong Kong, and was referred to the Immigration Department for deportation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Nigeria he would be harmed or killed by the elders and members of the Juju (Agbara-uddoh) practice in his home village for refusing their demand to succeed his father as the high priest of the Juju (Agbara-uddoh) practice in his home village.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Osumeyi, District Ukpor, Nnewi South, Anambra State, Nigeria where his father was the high priest of the Juju (Agbara-uddoh) practice, but the Applicant was raised in the same religion as his mother as a Christian and did not believe in the practice of black magic.

3.In 2004 his father died in suspicious circumstances, and when the village elders and members of the Juju practice asked him to succeed his father as the high priest of Juju practice in their home village, the Applicant refused to do so as a Christian, which upset and infuriated the elders and other members of the Juju practice that they made death threats against him, and after his house was subsequently burnt down the Applicant fled from his home village to take shelter in a friend’s place in Kaduna, but as he still feared for his life, he therefore departed Nigeria in December 2004 with a Ghanaian passport for China, and from there he later travelled to Hong Kong where he subsequently lost his Ghanaian passport and overstayed until his arrest by police in 2009 and was subsequently charged and convicted for breaching his conditions of stay, and after his release from prison and was referred to the Immigration Department for deportation, he raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 24 June 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.By a Notice of Decision dated 30 October 2014 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 those elders and members of the Juju practice in his home village upon his return to as low due to the low intensity and frequency of past ill-treatment from them, that after all these years since his departure from Nigeria that it is doubtful that those local Juju people would still have any desire in making him their local high priest or to have any further adverse interest in him, that in any event in the absence of 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 177 million people spread across a vast territory of more than 910,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Nigeria away from his home district where it would be difficult if not impossible for those members of the Juju practice to locate him.

6.On 7 November 2014 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended 2 oral hearings on 5 May 2015 and 28 July 2015 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicators for the Board.  On 28 October 2016 his appeal was dismissed by the Board which also confirmed the Director’s decision.

7.In its decision the Board found different and conflicting accounts in the Applicant’s evidence on his claim from those given earlier to the Director that it doubted the credibility of his claim of fear of harm from those local Juju people which had been further undermined by his failure to raise such claim upon his arrival in Hong Kong until almost 4 years later and only after his arrest by the police and was about to be deported by the Immigration Department when he first raised his claim, and that in any event if true that it was a localized risk without any official involvement that state/police protection would be available 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 in such a big country that his claim for non-refoulement protection failed on all applicable grounds. 

8.The Applicant never sought leave to apply for judicial review of this decision of the Board, and meanwhile on 30 December 2016 the Director on his own initiative invited him to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and upon receiving and considering a letter from the Applicant with the same information as previously submitted, the Director by a Notice of Further Decision dated 17 January 2017 rejected his BOR 2 claim after finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 Risk being violated upon his return to Nigeria.

9.The Applicant again lodged an appeal to the Board against the further decision of the Director, of which the Board did not find necessary to hold any further oral hearing for his appeal and proceeded to deal with it in the Applicant’s absence and on paper, and on 1 December 2017 it again dismissed his appeal after finding in the absence of any additional information that the Applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including his right to life under BOR 2 being violated upon his return to Nigeria, and that it also confirmed the further decision of the Director.

10.On 19 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just stated that the decision is unfair and unreasonable but without providing any details or particulars or elaboration as to how it is so, nor was he able to put forth any proper ground for his intended challenge at the hearing of his application.

11.By then the Applicant was also seriously out of time with his application, as 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 day 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.

12.As the last day of the three-month period for him to file his Form 86 fell on 1 March 2018, the Applicant was therefore more than 7 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.

13.In the Applicant’s case, a delay of more than 7 months must be considered as extremely inordinate, for which he explained at the hearing of his application that he never received the decision in the mail, and that it was only much later when he reported on his recognizance that he was so informed by his immigration officer but by then he was already seriously out of time with his application.

14.The record however shows that the decision was sent on the same day to his last reported address which is the same as his current address without being returned through undelivered post, and in the absence of any further details or other evidence to corroborate his bare assertions, I am not satisfied that the Applicant has provided any good reason for his serious delay.

15.As for the merits, if any, of his intended application, as noted above the Applicant did not put forth any proper ground for his intended challenge in his Form or supporting affirmation, while at the hearing of his application he just repeated his claim as before that his life will still be in danger in his home country, and that he has since married in Hong Kong and has his own family that he just does not want to leave.  As such 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 find any merits in his intended application either.       

16.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.

17.In the Applicant’s case, the Board having earlier already rejected his claim under torture risk, BOR 3 risk and persecution risk essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 15 – 34 of its decision with the benefit of hearing him in 2 hearings as to his oral evidence and his answers to questions raised of his claim, and in view of the absence of any relevant additional information from him for his BOR 2 claim, the Board was entitled and correct to find that the Applicant had also failed to establish any BOR 2 risk upon his return to Nigeria.  In fact, on the factual basis of his own case, and given the scope and threshold of BOR 2 risk, the Applicant’s claim simply did not engage the BOR 2 ground at all.  As such and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.  

18.Furthermore, 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 the Applicant’s claim which if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part 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 serious delay, I refuse to extend time and accordingly dismiss his leave application.

Dated the 5^th day of November 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