Case Document

100%Judiciary

HCAL 508/2019

[2021] HKCFI 3789

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 508 of 2019

BETWEEN
	Michael Ugochukwu Kingsley	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 1 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

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 citizen of Nigeria. The applicant came to Hong Kong on 19 November 2008 as a visitor. He overstayed and surrendered to the Immigration Department on 22 October 2015. He lodged non-refoulement claim to the Immigration Department by written representation of 10 March 2016.

5.He claimed that if refouled, he would be killed by Ibekwe and/or his associates because of their grudges against his father, who refused to politically cooperate with them. In 1993, he was abducted and imprisoned by Ibekwe and his people. He was released after a gun fight. In 2006, his father-in-law was killed for refusing to dissolve his daughter’s marriage with him. In late 2006, his wife divorced him. In 2007, his sister died in his father’s compound. The cause of her death is unknown. Details of his story are set out in paragraph 8 of the Director’s Decision and summarized in paragraph 35 of the Board’s Decision described below.

The Director’s Decision

6.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”).

7.By Notice of Decision dated 21 March 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that the level of risk of him being killed by his enemies if he returned to Nigeria was assessed to be low [16]; that state protection would be available to him [18]; that the dispute was a private dispute and there was no evidence that the state was involved [22]; and internal relocation was an option open to him [23].

The Board’s Decision

8.The applicant appealed against the Director’s Decision. He had appeared before the adjudicator of the Board.

9.The Board affirmed the Director’s Decision. It further found that the applicant’s credibility was in doubt because he did not seek protection immediately after he came to Hong Kong, not until 2016, some 7 years later. Section 37ZD(1)(b) of the Ordinance. His evidence was not supported by any extrinsic evidence. At paragraphs 53 & 55 of the Board’s Decision, the Board said:

“53. Looking at the evidence as a whole, I find it difficult to believe anything the Appellant says.

…

55. I cannot therefore find that there is any real chance that if he is refouled to Nigeria the Appellant will suffer death or other harm at the hands of Party B. [his enemies]”

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 21 February 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affidavit in support of his application, he said:

“The scar on my left leg is the result of the chronic ulcer I suffered from my shackled ankle at the time of my kidnap in 1993. Still leaving fear of the death threat of Mr. Godwin Ibekwe who keeps moving to the influential Party.”

DISCUSSION

12.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

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

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

“13 (1) … …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 affidavit in support of this application does not assist his application. The Board has taken on board his scar evidence. The adjudicator, having heard his oral evidence, is entitled to form his view as he did in this case. The applicant has raised no valid challenge to the Board’s Decision.

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 realistic prospect of success in his intended judicial review.

CONCLUSION

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

Dated the 16^th day of December 2021

	(K.H. LI)
	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 16/12/2021 Michael Ugochukwu Kingsley 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 16/12/2021 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 6725/17/4/1/NI128 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1180/16 (Formerly RBCZ 11079/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)