Ndumbi Paul Mulumba v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 594/2019

[2022] HKCFI 1451

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 594 of 2019

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 10 July 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”). The applicant’s application filed on 1 March 2019 is late. 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 18 August 2010. On 29 October 2010, he married a Hong Kong resident and obtained a dependent visa with the limit of stay extended to 20 April 2015. No further actions were taken after his limit of stay expired. On 12 January 2016, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by agents of the Congolese government because of his political involvement.

5.According to the applicant, he was a committee member of Congolese Democratic Movement (“CDM”), an anti-government organization. He was responsible for distributing the pamphlets for the party meetings. In November 2008, members from People’s Party for Reconstruction and Democracy (“PPRD”) attacked the CDM members during a meeting. The applicant also mentioned that there were other following attacks, during which he was injured in one of them. In 2009, he was again attacked by the members of PPRD for supporting the CDM and was taken to the police station. To avoid these chaos, he came to Hong Kong in August 2010. Nothing eventful happened until 2013 when he returned and learnt that people who protested the government were killed. In January 2014, a shooting incident happened in his party’s meeting and he managed to escape. On the same night, his property was looted by the PPRD members. In the year of 2014, the applicant mentioned that there were several attacks by the government forces against his party and, out of fear, he eventually fled to and stayed in Hong Kong for protection. Details of the applicant’s claim were set out at paragraph 8 of the Director’s Decision and paragraphs 3 to 10 of the Board’s Decision as described below.

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

a.  the torture risk under Part VIIC of the Immigration Ordinance (“the 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 a Notice of Decision dated 24 November 2016 (“the Director’s Decision”), the Director refused the applicant’s claim. The Director refused to accept that the applicant would face real or substantial risk of harm from the government forces upon refoulement because (i) no evidence suggested that the government forces targeted the applicant personally and, notwithstanding the fear, the applicant kept coming back and forth to the DRC [14]-[16]; (ii) state protection would be available to him [17]-[21]; and (iii) internal relocation was an option open to him [22]-[23].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. The Board held an oral hearing on 12 April 2018 for his appeal.

9.Bearing in mind human rights record of the DRC, the Board adopted the “most anxious scrutiny” to issues in this appeal [18]. The Board attached credence to the evidence on the applicant’s party and his leader [19]. However, it noted that the applicant encountered no difficulties with the immigration in the DRC and that, during his two months stay in the DRC in 2013 and 2014, he was never detained or arrested [21]. It also took into account the applicant’s delay in applying for international protection [22]. As a result, it rejected the applicant’s claim that he entered Hong Kong to seek protection [23]. In assessing the applicant’s claim, the Board found that he was a low-level activist and, in light of his safe and worry-free return to the DRC in 2013 and 2014 and relevant country of origin information, it was unlikely that he would be at risk upon refoulement [25]. For these reasons, the Board rejected the applicant’s claim on the applicable grounds and dismissed his appeal.

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 1 March 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he enclosed the Board’s Decision without setting out any specific ground in support of his application.

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. I shall, therefore 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.

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 2^nd day of June 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