Jermano Dominic Elsenhower v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1338/2022

[2023] HKCFI 772

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1338 of 2022

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:

1.  The extension of time for the application for Judicial Review be refused; and

2.  The application for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 18 October 2021 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application filed on 25 November 2022 is late.[1] 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 proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of America. He last entered Hong Kong on 7 January 2020 and was permitted to stay as a visitor until 6 April 2020. He did not depart nor did he seek extension of stay. He had been overstaying in Hong Kong since 7 April 2020. On 14 October 2020, he was arrested by the police. On 2 November 2020, he submitted a written signification for his intention to lodge a non-refoulement claim. On 16 December 2020, he wrote to the Immigration Department about the intention to withdraw his non-refoulement claim. Nevertheless, on 18 December 2020, he expressed his unwillingness to leave Hong Kong as it would be unsafe for him to return to the United States and thus the process of his non-refoulement claim proceeded.

5.The applicant claimed that, if refouled, he would be harmed or killed by the U.S. government, Israeli government and the other U.S. allies as he disclosed the government’s lies and revealed the truths, including the truth of the 9/11 attack. His claim to the Immigration Department could be summarized as follows. He had been a truck driver for H.O. Bouchard Inc. since 1 August 2001. On the day of 9/11, he was supposed to drive to New York and pick up something before he returned to Maine. However, as he was approaching afar, he saw the smoke billowing into the sky. As a result, he returned to Maine. He was fired due to his failure to pick up the load.

6.Thereafter, the applicant started to study the 9/11 incident. He claimed that one year before the 9/11 attack, when he was driving through Iowa, he noticed that there were military convoys. He suspected that they were planning something which remained unknown to him. He further learnt from a radio program and was certain that the 9/11 attack was planned by the U.S. government and the Israel’s Prime Minister. The applicant was certain that the U.S. president would kill him as they had no mercy in killing others in the 9/11 attack.

7.Since 2001, he had been living and working in Mainland China. He also stayed in the U.S. from 2014 to 2016 pending his passport renewal. Insofar as the current situation was concerned, the applicant expressed his unwillingness to stay in Hong Kong if not for the lockdown policy implemented by the central government in Mainland China. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 8 June 2021 by the Director (the “Director’s Decision”).

The Director’s Decision

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

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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”).

9.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments from his alleged enemies, as well as his own behaviors in the claimed risk state, indicated an unlikelihood of future risk of harm [16]-[29]; (ii) state protection would be available to him [30]-[34]; and (iii) internal relocation was a viable option [35]-[40].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. On 28 September 2021, the Board conducted an oral hearing for his appeal. Prior to the hearing, the applicant provided additional materials and messages via emails to the Board.

11.After pursuing the relevant reports and literatures on the theme of 9/11 conspiracy theory, the Board noted that the major promoter of the said theory, namely, Mr. Richard Gage, the founder of Architects & Engineers for 9/11 Truth, or the other promoters, were not persecuted [31]-[36]. It also considered the applicant’s claim of being tortured and found that the applicant’s own definition of torture did not fit into any definitions in either Hong Kong or international jurisprudence [38]-[39]. There was simply no evidence that the applicant was ever adversely targeted by the U.S. government or any other governments [40]. Meanwhile, the Board rejected the applicant’s claimed stateless status as it was simply baseless [41]-[49].

12.Further, the Board also took into account the country of origin information cited in the Director’s Decision as well as those cited by the applicant to refute the Director’s arguments [50]-[51]. It proceeded to consider the applicant’s claim in light of the legal principles governing non-refoulement claim and concluded that the applicant would not be at risk of persecution upon refoulement [59]; that he would not face any risk of harm which amounted to a violation of his BOR3 right [63]; that his right to life would not be violated [65]; and that he would not be tortured if he returned to the U.S. [67]. His concern of the Covid-19 situation in the States did not fall within the perimeter of a non-refoulement protection [71].

13.For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

14.The applicant has filed Form 86 dated 25 November 2022 for leave to apply for judicial review of the Board’s Decision.

15.In his affidavit in support of his application, he had raised the issues that he was advised by some magistrates to make this application. He does not want to return to the US because he had witnessed the 9/11 incidents and he does not want to pay taxes to a criminal government. However, the Director refused his application, based upon political reason; that is to say, the political tension between China and the United States. The Chinese government had stolen his property in Nanjing and he wants the Chinese government to pay him back.

DISCUSSION

16.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. The deadline of his application is on 18 January 2022. The delay is about 10 months. He has given no explanation for his delay and his application can be dismissed on this basis alone. However, I shall first consider the merits of the applicant’s case.

17.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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

19.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.”

20.The Board had assessed his evidence and, for the reasons given, rejected his evidence on the facts of his claim and further held that his allegations did not have any merits. There grounds set out in paragraph 15, supra, are not valid to challenge the Board’s Decision.

21.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.

22.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

23.Therefore, I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 6^th day of April 2023

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