Ajaere Paschal Chika Alias Chika v. Torture Claims Appeal Board

HCAL 1286/2021

[2021] HKCFI 3902

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1286 of 2021

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 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 14 July 2017 refused; and

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

Observations for the Applicant:

1.The Applicant is a 46-year-old national of Nigeria who arrived in Hong Kong on 9 June 2007 as a visitor with permission to remain up to 23 June 2007 when he did not depart and instead overstayed, and was arrested by police on 1 December 2009. After he was referred to the Immigration Department for investigation, 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 his cousin over a land dispute with his family 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 Abavo, Delta State, Agbor City, Nigeria where his father owned a piece of farmland inherited from his grandfather. After leaving school he went to work as a shoemaker in Onitsha City in Anambra State.

3.In 2004 his paternal cousin wanted to appropriate the farmland of the Applicant’s father, and when the Applicant’s father resisted, it led to a serious dispute between the two families, and in March 2004 his cousin ignored his father’s objection and started to cultivate crops on the land.

4.After being told by his family of the dispute, the Applicant returned to his home village to destroy his cousin’s crops on his father’s farmland, to which his cousin swore to kill him in revenge. Thereafter the Applicant returned to Onitsha City to continue with his job, but one day in April 2004 while he was out working, some men came to his home looking for him, and after being told by his neighbor, the Applicant suspected that those men were sent by his cousin to harm him, and so he fled to Lagos where he stayed for several years until June 2007 when he thought it would be safe to return to his home village, but after another heated confrontation with his cousin, the Applicant felt it was no longer safe to remain in Nigeria, and so on 8 June 2007 he departed for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 3 June 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.By a Notice of Decision dated 17 June 2015 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”).

6.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 cousin upon his return to Nigeria as low due to the low intensity and frequency of past ill-treatment from him, that it was a private land dispute essentially between his cousin and his family that that there is no reason for his cousin to specifically target him for harm especially after all these years since he left the country, 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 923,000 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 in large cities such as Lagos where he had stayed before without incidents and where it would be difficult if not impossible for his cousin to locate him.

7.By a Notice of Further Decision dated 25 November 2016 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation 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”).

8.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of appeal which was filed on 11 August 2015, and for which he attended 2 oral hearings on 23 January 2017 and 16 March 2017 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 14 July 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board found contradictions, inconsistencies and omissions in the Applicant’s evidence as to his account of disputes with his cousin over his family’s farmland that it doubted the credibility of his claim, and that in any event 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 safely move to other areas away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

10.On 13 September 2021 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 just stated that the decision is not justified and was made only on the inference of relocation in his home country from where he had fled in the first place but without providing any details or elaboration why the decision is wrong, nor did he put forth any other proper ground for his intended challenge, and despite having repeatedly stated that that he would explain and give oral evidence at the hearing of his application, he did not appear at the scheduled hearing without any explanation.

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 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.

12.As the last day of the three-month period for him to file his Form 86 fell on 14 October 2017, the Applicant was therefore almost 4 years 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 almost 4 years must be considered as extremely substantial and inordinate, for which he just stated in his Form that he did not receive the decision by post but without providing any further details or evidence or elaboration as to say how he eventually found out about the decision if indeed he never received it in the mail, nor did he attend the hearing of his application to do so as he so asserted in his Form, while the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post. As such and in the absence of any further evidence to corroborate his bare assertion, I am not satisfied that he has provided any good reason for his serious delay.  

14.As for the merits, if any, of his intended application, as noted above the Applicant has also failed to put forth any proper or valid ground for his intended 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 find any merits in his intended application either.

15.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.

16.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim 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.     

17.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.

18.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 30^th day of December 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