Ilumueni Nzuzi Ilous v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1630/2021

[2022] HKCFI 267

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1630 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 oral submissions by the Applicant 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 31 May 2021 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”). The applicant’s application filed on 1 December 2021 is late for about 3 months. I shall deal with this issue below.

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 national of Democratic Republic of Congo (“DRC”). He entered Hong Kong on 27 April 2005 and was permitted to stay as a visitor until 11 May 2005.  He did not depart and had overstayed.  On 1 June 2009, he surrendered to the Immigration Department and lodged a torture claim. His torture claim was rejected and the appeal was dismissed on 10 March 2014. On 27 September 2013, through his legal representatives, he lodged a non-refoulement claim.  The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed by the DRC Army or relevant authorities because (i) he had left his mission without informing the ministry of defence (“MOD”) and did not report to their office after returning from Kinshasa and (ii) he escaped from prison and were on the wanted list of DRC government.     

5.According to the applicant, he was hired by the MOD to be a photographer in 2001 and was responsible for documenting the military events.  However, in 2005, his reporting team was dispatched to the war zone in Goma.  Feeling overwhelmed by the killings, he fled with his teammates.  After he returned to Kinshasa, he was escorted to the Director of Military Press, Colonel K, who ordered the soldiers to beat him up.  He was then sent to the prison where he was sexually assaulted by the inmates.  Later, the applicant was rescued from the prison and eventually he fled to Hong Kong for protection.  While he was in Hong Kong, he received from his friend two search notices against him.  He also learnt that his father was killed and his two daughters were missing.  Details of his story are set out in paragraph 12 of the Director’s Decision and paragraphs 14 to 39 of the Board’s Decision as described below.

The Director’s Decision

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

a.     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”);

b.     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

c.     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 a Notice of Decision dated 20 September 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that the material aspects of the applicant’s claim were not credible [17]; that the level of risk of him being harmed or killed upon refoulement was assessed to be low [18]-[23]; that state protection was available to him [25]-[27]; and that internal relocation was an option open to him [28]. 

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  The Board scheduled an oral hearing on 30 April 2021 for his appeal. 

9.Having considered the applicant’s evidence, the Board made the following findings (i) the present case concerned the applicant’s abandonment of a mission which violated his duty and thus he was lawfully taken into custody; (ii) the applicant escaped the lawful custody.  In these circumstances, the applicant was a fugitive from justice [42]-[45].  While the Board accepted that the applicant was beaten up under Colonel K’s order, it was a single accident without indication of state involvement [46].  Further, the two search notices documented an escaped prisoner from General Hospital of Kinshasa instead of a prison, casting doubt on the applicant’s version that he was sent to prison [47].  The Board also found that the alleged incidents of his father and daughters were hearsay without any proof [48]-[49].  Meanwhile, the country of origin information suggested that DRC had improved in combatting human rights abuse [50].  As to the applicant’s alleged attack, the Board found that the alleged injuries did not attain to the level of severity.  For these reasons, the Board rejected his claim on BOR3 risk and, for the same reasons, it also rejected the applicant’s claim on the remaining grounds.  For the issue on internal relocation, the Board found that, as a fugitive of justice, the applicant would have difficulties in hiding from the authorities and yet it was the legal consequence that he had to face for his own wrongdoings [58]-[59].

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 1 December 2021 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he said that the decisions of the Director and the Board were unsafe and unfair as they were based on assumption and inference.

DISCUSSION

12.As mentioned in paragraph 1, the applicant’s application is late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application.  See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. The delay of 3 months is significant and serious. I shall, nevertheless, first consider the merit of the applicant’s case.

13.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).

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(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.”

16.The applicant has not raised any valid ground to challenge the Board’s Decision. The reasons given by the Board are clearly not based upon assumptions or inference. They are the facts given by the applicant.

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 realistic prospect of success in his intended judicial review.

CONCLUSION

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

Dated the 15^th day of February 2022

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