Simona Mundia v Immigration Department And Another [Decision On Leave Application]

Judgment Date04 June 2020
Neutral Citation[2020] HKCFI 1031
Judgement NumberHCAL3001/2018
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL3001/2018 SIMONA MUNDIA v. IMMIGRATION DEPARTMENT AND ANOTHER

HCAL 3001/2018

[2020] HKCFI 1031

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3001 of 2018

BETWEEN

Simona Mundia Applicant
and
Immigration Department 1st Putative Respondent
Torture Claims Appeal Board 2nd Putative Respondent

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1. The Applicant is a 48-year-old national of both Zambia and Nigeria who last arrived in Hong Kong on 11 July 2010 when he was arrested at the airport for trafficking in dangerous drugs for which he was subsequently convicted and sentenced to prison for 12 years. While serving his sentence in prison he raised a non-refoulement claim with the Immigration Department on the basis that if he returned to Zambia or Nigeria he would be harmed or killed by the drug trafficking organization in Zambia for failing to deliver the drugs and/or by the Nigerian government for being involved in a secessionist group known as Movement for the Actualization of the Sovereign State of Biafra (“MASSOB”).

2. The Applicant was born and raised in Lusaka, Zambia to a Nigerian father and a Zambian mother and hence he has duo nationality of both countries. After spending his childhood in Zambia, he moved with his parents to Aba City, Abia State, Nigeria where he took an apprenticeship with a local trader, and also became a supporter of MASSOB participating in their rallies and demonstrations, and during one of such demonstrations that the police arrived to disperse them by shooting at them with guns and with subsequent mass arrest, but he managed to make his escape unharmed.

3. Later he came to befriend some business associates who offered him an apprenticeship in their business which brought him to work in Cambodia and Bangkok with frequent travels to other cities in Asia including Hong Kong, Macau and Mainland China.

4. One day in July 2010 he was told to bring something to someone in Hong Kong which he was unaware were illegal drugs until he was stopped and searched by the immigration officers at the Hong Kong Airport, and for which he was subsequently convicted of the offence of drug trafficking and was sentenced to imprisonment for 12 years.

5. Whilst in prison he was told by his relatives in Zambia that his former business associates who turned out to be criminals from a drug trafficking organization had come looking for him, and when they were told of his imprisonment in Hong Kong, they refused to believe it and instead accused him of stealing the drugs from them and for which they would find him and kill him.

6. As a result the Applicant became fearful that after he had served his sentence in Hong Kong he would be repatriated to Zambia where he would be harmed or killed by the drug trafficking organization or by the Nigerian authorities for being involved in MASSOB if he is refouled to Nigeria, and so he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 26 March 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7. By a Notice of Decision dated 26 April 2018 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”).

8. In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the drug trafficking organization in Zambia or from the Nigerian government respectively upon his return to Zambia or Nigeria as low due to the absence of past ill-treatment from them, that it was incredible that the drug trafficking organization was not aware of his arrest in Hong Kong and that there is no reason why they would still want to go after him well knowing that he was in prison and that the drugs had been confiscated by the police, that there is absolutely no evidence that he had ever been pursued or targeted by the Nigerian authorities during all those years before he was eventually arrested in Hong Kong, that in the absence of 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 Zambia and Nigeria with large population spread across vast territories that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other parts of either country away from his home district in large cities where it...

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