NDUKWE BARTHOLOMEW CHUKWUMA v. NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER [Decision on Leave Application]

HCAL 14/2018

[2020] HKCFI 56

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 14 OF 2018

_____________

_____________

____________

DECISION

____________

1.  On 3 October 2019 I refused to grant leave to the Applicant to apply for judicial review of the decision of the Director of Immigration (“the Director”) or of the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing his non-refoulement claim upon finding none of the grounds put forward by him reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in his process before the Director or the Board or in their decisions, and that there was no reasonable prospect of success in his intended application.

2.  The Applicant now by a summons issued on 21 October 2019 seeks leave to appeal against that decision out of time, as the 14-day period for him to file his appeal under Order 53, rule 3(4) of the Rules of the High Court, Cap 4A ended on 17 October 2019, and hence he was late by four days with his intended appeal. 

3.  In considering whether to extend time for appealing against a decision refusing leave to appeal for judicial review, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The AppealPanel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director ofImmigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur[2018] HKCA 226; and Re Saqlain Muhammad[2018] HKCA 346.

4.  In the Applicant’s case, a delay of four days may not be considered as significant, for which he explained at the hearing of his summons that he only received the decision on 18 October 2019 when he made enquiry at the court about it on that day.  As the court record shows that the decision sent to the Applicant’s last reported address by post on the same day of 3 October 2019 has been returned marked “no such address”, and that it was indeed on 18 October 2019 that the Applicant was given a copy of the decision, I am prepared to accept his explanation for the delay, and proceed to consider the merits or prospect of his intended appeal.   

5.  However, the Applicant did not in his summons or affirmation provide any draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be argued that the decision was unfair or unreasonable, nor was he able to do so at the hearing when he merely repeated his claim that his life would still be in danger in his home country,and that the Court should not have accepted the decision of the Director or the Board in rejecting his non-refoulement claim as correct but without providing any particulars or elaboration as to how or why it was so.  As such and in the absence of any error in the decision being clearly and properly identified by the Applicant, I do not see any prospect of success in his intended appeal. 

6.  In the premises, it would be futile to extend time for what appears to be a hopeless appeal.  Accordingly I refuse his application for leave to appeal out of time, and dismiss his summons.

The applicant appeared in person

HCAL 14/2018

[2019] HKCFI 1079

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 14 of 2018

 Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 48-year-old national of Nigeria who arrived in Hong Kong on 16 December 2007 with permission to remain as a visitor up to 6 January 2008, but he did not depart and instead overstayed until 31 March 2016 when he surrendered to the Immigration Department, and raised a non-refoulement claim on the basis that if he returned to Nigeria he would be harmed or killed by his paternal uncle over some land dispute. He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Ukpor, Nigeria.  After his father passed away in 1997, he inherited a piece of land from his father’s estate on which he would grow vegetable and other agricultural produce.

3.  In about July 2006 the applicant cleared up some part of his land for the purpose of constructions, but when his second paternal uncle Gabriel who had always coveted his land insisted that he must seek his permission first before doing anything with the land, he refused and brought the matter to the village elders for their decision, and the elders decided that since it was his land he could do whatever he wanted with it and told his uncle to stay out of it.

4.  As a result his uncle became furious with the applicant and warned him that he could be killed for being his enemy.  The applicant did not report the threat to the police, but instead he sought help from his eldest uncle who then told the second uncle to stop harassing the applicant.

5.  However, shortly thereafter the eldest uncle suddenly died of some unknown cause,but the applicant suspected that it was the second uncle who had used black magic to kill him, he therefore decided to stay away by fleeing to Lagos, but when he heard that some men armed with weapons were approaching his residence in Lagos, he went to hide in his friend’s place when he was advised to leave Nigeria for his own safety, and so he departed on 15 December 2007 for Hong Kong where he overstayed and some eight years later in 2016 raised his non-refoulement claim, for which he completed a Non-refoulement Claim Form on 23 November 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 21 February 2017 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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”).

7.  In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from his uncle upon his return to Nigeria as low due to the low intensity and frequency of past ill-treatment from him, that there is no reliable evidence that his uncle had any real intention to seriously harm or kill him, that it was a private family dispute without 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 186 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 work experience to move to other part of Nigeria away from his home district in large cities such as Lagos where it would be difficult if not impossible for his uncle to locate him.

8.  The applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which he attended an oral hearing on 3 October 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 6 December 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board accepted that the applicant was involved in a land dispute with his uncle, but not that he had suffered any harassment or threats from his uncle of an intensity sufficient to give rise to a fear of acceptable severity under any of the applicable grounds, or that he left Nigeria for Hong Kong in search of international protection given the long lapse of time for him to raise his claim, and that in any event it would not be unreasonable for him to move to a different part of Nigeria where he would be able to establish himself without any real risk of any form of harm upon return to Nigeria. 

10.  On 3 January 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no grounds for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely put forward one vague and unelaborated complaint as follows:

“ That in considering my case, the Hong Kong Immigration Department and the TCAB failed amongst other things to acknowledge clear evidence of unavailability of an effective/unreliability of state protection in my home country.”

11.  He did not request for any oral hearing, nor did he ever elaborate what amongst other things that he claimed in the affirmation that the Director or the Board had erred or failed to consider in their decisions, nor did he provide any particulars or elaboration as to his only complaint that they failed to acknowledge clear evidence of unavailability or unreliability of state protection in Nigeria, which is otherwise factually incorrect as it is clear that the Director did properly consider the availability and effectiveness of state protection in his home country from those relevant COI set out in paragraph 17 and the Appendix to his decision, which were provided to the Board in the hearing bundle for the applicant’s appeal of which no doubt the Board had also taken into consideration.  As such I do not see how this ground can reasonably be arguable for his intended challenge.

12.  Otherwise the applicant has failed to put forth any other ground for his intended application. As has been repeatedly emphasized by the Court of Appeal, 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; ReMudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400; and Re Litoun Mounsy[2018] HKCA 537.

13.  Furthermore, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicant’s claim 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.

14.  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.

15.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 3^nd day of October 2019.

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