OFUKA BENEDICT SALLY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

bjbj HCAL 985/2017 [2018] HKCFI 2270 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 985 of 2017 BETWEEN Ofuka Benedict Sally Applicant Torture Claims Appeal Board / Non-refoulement Claims Petition Office Putative Respondent Director of Immigration Putative Interested Party 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 present/absent in open court; Order by The Honourable Mrs Justice Campbell Moffat: Extension of time for leave to apply for judicial review be refused. Observations for the Applicant: Procedural history The Applicant entered Hong Kong legally on 4 March 2008 and overstayed. He was arrested by the police on 25 May 2009 for and was transferred to the Immigration Department on the next day. The Applicant submitted a non-refoulement ( ) claim by way of written representation on 28 May 2009. He was released upon recognisance on 4 June 2009. His NRF claim form was submitted on 24 August 2015. The Applicant attended screening interviews on 20 October and 11 December 2015. The Director of Immigration ( the Director ) dismissed his claim (not including that under BOR 2) by Notice of Decision ( the Decision ) on 5 May 2016 and by Notice of Further Decision (re BOR 2) on 24 February 2017. He appealed the Decision to the Torture Claims Appeal Board ( the TCAB ). The adjudicator of the TCAB, Mr Kevin Ball ( the Adjudicator ), heard his appeal on 2 and 6 March 2017. He considered his appeal on all applicable grounds including BOR 2. The Adjudicator refused his appeal on 26 July 2017. Background to the claim The Applicant was born in Boji Boji Owa and is a Christian from the Ika tribe. He is single. He attained a Bachelor of Business Administration and was a chartered administrator between 1990 and 1994. From then until 2007, the Applicant ran his own business selling fabric. He maintains that he was an active member of the Niger Delta Awareness Movement of Agbor ( the Movement ), which was a human rights movement seeking to overthrow the government. The Applicant was the head of the publicity department and carried out this job despite being located some distance away from Agbor. In 1993, the Applicant was arrested for his involvement in the Movement and was detained for three days during which time he was assaulted by the police and security services. He was slapped; put in a dark cell; handcuffed by hand and foot; deprived of food, water or medical treatment and proper hygiene. They laid him on a wooden table and whipped him. They also hit his wrist with an iron bar and placed a stick in his anus. This all caused bruising and swelling as well as a broken wrist and difficulty seeing out of his left eye. The Applicant was brought before the Director of Security Services after three days and was released after explaining to the Director that he was exercising his rights. The Applicant was treated at a local clinic and not a hospital, as the staff at the hospital could not be trusted. His wrist was set and his other wounds were treated with local medicine. As a result of his detention and ill treatment, the Applicant moved to Lagos and sought to change his looks to avoid detection. However, he continued his activism and was once more sought by the police in 1995 and believed he had been placed on a wanted list. Nevertheless, he continued to operate his business in Lagos. He did return home on occasion but for very short periods of time and was not detained. The Applicant went to Ghana in 2007 for three months but suffered financial difficulties and therefore returned to Nigeria. One week later, he left for Hong Kong using his own passport without incident because he did not pass through the normal immigration control points. Form 86 out of time In accordance with Order 53 rule 3, the Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review. This was dated 30 November 2017. Under Order 53 rule 4 an application for judicial review shall be made promptly and in any event within three months from the date when the grounds for the application first arose. Where the relief sort is a review of a case tried in a lower court, the relevant date from which time runs is the date of that decision. In this case time ran from 26 July 2017. The Notice of Decision was sent to the Applicant s registered address; the same address he relies upon for these proceedings. The Applicant has submitted no explanation for his delay and has not sought leave for an extension of time. I have nevertheless considered the principles applicable to granting such an extension if an application had been made and those are: 1) the length of delay; 2) the reasons for delay; 3) the prospects of success in the intended appeal; and 4) the prejudice to the putative respondent if extension of time were granted. In this case the Applicant was late by 35 days and has not offered any explanation for this delay. In view of that, he must satisfy the court that there are real prospects of success in his intended leave application and that there will be no prejudice to the putative respondent before an extension of time will be granted. There were no grounds of review. There is no reason at all before the court as to why an extension of time for leave to apply for judicial review should be given. The Applicant s claim as explained above was not found to be substantiated by the Director or the Adjudicator. There is nothing from the Applicant or in the papers to suggest the Adjudicator has acted improperly or unreasonably in coming to his decision. The Applicant s case is not therefore reasonably arguable and does not have a realistic prospect of success. Accordingly, this application is dismissed as being out of time. Dated 7th day of December 2018. (Ms Queenie Mak) for Registrar, High Court 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 Notes for the Applicant: If leave has been granted, the Applicant or his solicitors must: a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). If extension of time has not been granted, the Applicant or his legal representative must: (a) first apply to this court within 14 days of the date of this order by way of summons for leave to appeal, (b) When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal, (c) The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper, (d) If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions. Sent to the Applicant on 7/12/2018 Ofuka Benedict Sally Applicant s ref. no: Nil. Sent to the Putative Respondent / the Putative Respondent s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties solicitors on 7/12/2018 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Respondent s ref. no.: USM 3693/16/5/111/NI85 Director of Immigration Putative Interested Party s ref. no.: RBCZ 9000247/17 (QA T/C 1275/15; formerly RBCZ 1388/09) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2) Form CALL-1 Chee Fei Ming v Director of Food and Environmental Hygiene [2015] 4 HKC 134; Wong Yuk Man v Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015). 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