Soumana Abdoulmajid v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL478/2017

[2018] HKCFI 916

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 478 of 2017

BETWEEN

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 the Applicant in open court;

Order by Deputy High Court Judge Woodcock:

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.The applicant is a Nigerian national who arrived in Hong Kong on 14 October 2012 and had permission to remain for 14 days.  Somebody departed Hong Kong using his passport on 27 October 2012.  The applicant himself remained in Hong Kong and overstayed since 29 October 2012.  He was arrested for overstaying on 10 September 2013 and then he lodged a non-refoulement protection claim.  That claim was rejected by the Director of Immigration (“the Director”) on 8 April 2016 and 9 January 2017.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 14 June 2017.

2.The applicant then filed a notice of application for leave to apply for judicial review on 3 August 2017.  There were no grounds in his affirmation so a hearing date was set down for the applicant to be given an opportunity to be heard in open court.  The applicant appeared in person having had his legal aid application refused.

3.The basis of the applicant’s claim was that he would be harmed or killed by his uncle in Nigeria because he refused to give him money after the applicant sold the livestock business he took over from his father after his death in April 2012.  In addition, the applicant was a Christian and the Nigerian government does not protect Christians, particularly from the Boko Haram militants.  Both the adjudicator of the TCAB and the Director set out the applicant’s evidence and claim in detail in their decisions therefore, I do not need to repeat it here.

4.The applicant was born in 1980 in Niger and is a national of both Nigeria and Niger.  The applicant suspect his father and sister were killed by his uncle who now wants the money the applicant made from selling his father’s business.  The applicant has run away to escape his uncle who is politically connected to the People’s Democratic Party as well as the police.  He also states that because the head of the government in Nigeria is a Muslim, he will not be protected as a Christian and does not want to convert.

5.The Director and the adjudicator of the TCAB analysed the applicant’s claim under all applicable grounds;

(a)  risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c)  risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d)  risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

6.The adjudicator of the TCAB conducted an oral appeal hearing and treated the appeal as a rehearing.  She correctly set out the law and key legal principles for the four applicable grounds.  She set out the applicant’s claim and assessed his evidence.  He did elect to give evidence and answer questions.  She found the account of events he gave in the hearing different to the account he had previously given to the Director and Immigration Department.

7.The adjudicator set out the discrepancies in her decision as well as the applicant’s explanations.  The adjudicator found the account of events from the applicant varied so significantly that his credibility was undermined.  She did not find him a credible, truthful or reliable witness.  She gave full reasons for that conclusion.  She found that his evidence showed a propensity to manufacture, shift and concoct evidence in a manner which achieves his own purpose.   She found he fabricated and concocted his evidence to advance a claim for non-refoulement protection.  She did not believe that his father or sister were murdered by his uncle because of a business dispute, therefore there was no risk from his uncle if he returned.

8.The adjudicator also found that the risk from Boko Haram if he returned to the south of Nigeria or more generally because of his Christian religion was very low.  The adjudicator considered Country of Origin information and set out her reasons for this finding.

9.As a result of her careful assessment, the adjudicator applied her findings to the law and found the applicant was unsuccessful in showing he was at risk of torture, unable to invoke the protection of BOR 2 or BOR 3 and could not prove a persecution risk for the purpose of a non-refoulement protection claim.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

10.The applicant has named the Director as the proposed respondent not the adjudicator of the TCAB in his Form 86.  In his affirmation the applicant exhibits an interview dated 26 November 2015 with an Immigration officer as well as his non-refoulement claim form.  He does not set out any grounds in it.

11.The applicant utilised his channel of appealing the Director’s decision to the TCAB.  The TCAB treated the appeal/petition as a de novo hearing or rehearing.  The TCAB would have considered the Director’s decision and ensured there were no errors as it treated the applicant’s appeal/petition as a rehearing.  The applicant has not specified or particularised what grounds he seeks to judicial review the Director and not the TCAB.  It would have to be a point or ground of appeal that was not raised with the TCAB or addressed by the TCAB.  To seek to judicial review the Director here is in my view, not the right course of action to take; there is no room for a judicial review of his decision unless in very specific circumstances.  Those circumstances do not arise here.

12.In any event, even if I am wrong, there are no grounds against either the Director or the TCAB.  In the oral hearing that was arranged to afford the applicant a chance to put forward grounds, the applicant had nothing to say except that his problems still existed in Nigeria.  He said that the country was not stable, Christians were being slaughtered and the president was a Muslim.  He said there was no change from before and he would return home when things improved.  These were not grounds with any merit against either decision-makers.

13.Despite the lack of grounds, I have considered with rigourous examination and anxious scrutiny the decisions of both the adjudicator of the TCAB and the Director.  I do not find any error of law by either decision-makers.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.

14.In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.

Dated 11^th day of May 2018.

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