Duru Charles Anayo v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL549/2017

[2018] HKCFI 1287

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 549 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 31 May 2011 and was permitted to remain for seven days.  He applied for and was granted an extension of his Visa until 27 June 2011 however, he did not leave Hong Kong as required and overstayed from 28 June 2011. Oddly, according to the Immigration Department records a person did leave Hong Kong on 27 June 2011 using the applicant’s identity and document.  The applicant was arrested one year later on 27 June 2012 and told the Immigration Department that he had lost his passport.  He then lodged a non-refoulement protection claim.

2.The Director of Immigration (“the Director”) rejected his claim on 28 August 2015 and 12 April 2017.  The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 6 July 2017.  He filed a notice of application for leave to apply for judicial review on 24 August 2017 and requested an oral hearing which was set down for 22 January 2018.

3.The applicant appeared in person at the hearing but requested an adjournment because he was under the impression that he had been successful with a second legal aid application.  He assumed that a lawyer would be appearing on his behalf at the hearing.  This court refused an adjournment and proceeded on the basis that the applicant was unrepresented and unsuccessful with a legal aid application.  However, I gave the applicant an opportunity to produce proof of his successful legal aid application after the hearing but heard nothing more from the applicant.  The Legal Aid Department did file a memorandum of notification that the applicant had been refused legal aid dated 26 January 2018; four days after the hearing.

4.The basis of his claim was that he would be persecuted or killed by an unknown group of Islamic attackers as well as local officials in Nigeria who targeted Christians like the applicant.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and case in detail in their decisions therefore, I only intend summarise it here.

5.The applicant was single, belonged to the Igbos clan and was a practising Christian.  In about 1995 he moved to live in Lagos State.  He was educated until class 12, worked in a car part factory for a few years and from 2013 was unemployed but survived with the support of friends.  The applicant attended a Christian church until he came under attack twice for being a Christian by an unknown group of Islamic believers who were intent on killing Christians in 2008 and 2010.

6.On the first occasion the applicant was chased by some 50 attackers armed with machetes, pistols and rifles with some dressed as police officers and showing government official cards.  They were questioning people and assaulted those who claimed to be Christians.  The applicant believed they were Islamic extremists. The applicant ran away as they approached him but was hit by a car.  He ended up with bone fractures and internal bleeding and required surgery on his leg.  He spent six weeks in hospital.  The applicant believes that the local police were supporting the Islamic attackers so he did not make a police report. After that incident, it was often in the news that Christians were killed in other states in Nigeria because of their religion.

7.On the second occasion in September 2010, the applicant had left church when he again saw a large group of attackers in Islamic clothing and some in police uniforms carrying machetes and guns.  He heard them shouting at churchgoers and demanding they convert from Christianity to Islam.  He saw churchgoers indiscriminately attacked and he ran away.  He hid in a nearby park for about a week and thereafter did not dare to return to the church to attend services.  He moved to a friend’s home far away from the church.

8.He stayed with his friend for a month before he made arrangements to come to Hong Kong as suggested by other Christians.  He believed his life was in danger from Islamic extremists if he remained in Lagos State.  He left Nigeria on 30 May 2011 but did not make a non-refoulement protection claim immediately upon arriving in Hong Kong because he did not know the procedure.  He also did not know the procedure of reporting his lost passport to the authorities.  His family remained in their home village and were not physically attacked or verbally threatened because of their religion.  However, the applicant believed that he could not relocate internally because the Islamic extremists were everywhere in Nigeria persecuting Christians.

9.The adjudicator, as did the Director, 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”).

10.The adjudicator treated the applicant’s appeal as a rehearing and conducted an oral hearing.  The hearing was dated 6 June 2017 and the adjudicator noted that the applicant had written to the Immigration Department on 2 May 2017 after his BOR 2 risk claim was rejected, asking for more time to provide information to support his claim.  As a result of this request, the adjudicator asked the applicant what further information he wished to provide and he said he wanted to obtain photographs of the rioting which had taken place in 2008, 2009 and 2010.  The adjudicator refused the applicant’s request for more time because he considered that the applicant had had five years from the time he lodged a claim to obtain documents and evidence; he had had ample time to obtain any information he wished to rely on.

11.The adjudicator correctly set out the law and key legal principles applicable to the four grounds as well as the applicant’s evidence and case.  He set out the applicant’s answers in response to his questions during the oral appeal hearing.  The adjudicator concluded that the applicant’s fear was related to being caught up in random incidents rather than a fear he would be personally targeted.

12.The adjudicator found the applicant’s credibility questionable.  He found it highly suspicious that a person left Hong Kong using the applicant’s passport on the last day of the validity of his Visa.  The adjudicator suggested this raised the possibility that the applicant had colluded with others and willingly handed over his passport to another.  It would then appear that he had left Hong Kong as required but in fact he remained underground for a year before he was arrested. He did not lodge any claim until after he was arrested.  This was not consistent with the actions of a man who fled to Hong Kong specifically to seek protection.  The adjudicator rejected his evidence of what he did in Hong Kong for a year before he was arrested; he found it inherently implausible which damaged his credibility even further.

13.The adjudicator accepted that the applicant was Catholic but found his evidence regarding the two incidents vague, general in nature and ultimately far-fetched and fanciful.  There were other reasons for the adjudicator doubting the credibility of the applicant which he set out in his decision.  The adjudicator did consider that there were random attacks by Islamist against Christians but those attacks had mainly occurred in the northern states of Nigeria, not all over Nigeria.

14.The adjudicator did not believe the applicant was a genuine claimant.  He did not believe that the applicant had personally witnessed the two attacks which he describes by Islamists.  He could only identify his fear of being killed by “bad groups” if he was to return to Nigeria; this speculation was not credible evidence.  The adjudicator found that the claimant was not at real risk of persecution, torture or CIDTP if refouled home.

15.As a result of his findings, the adjudicator 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 purposes of a non-refinement protection claim.  The adjudicator confirmed the decisions of the Director.

Leave to apply for judicial review

16.I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application.  I find the adjudicator’s decision to be without fault, he analysed the material, claims and evidence carefully.  I find no substance in the grounds of this application; they are not substantiated.

17.In his supporting affirmation, the applicant claims that he was not prepared for the appeal because the appeal bundle had been served on him late and he had no money to hire an interpreter.  This meant that he was confused on the day of the hearing and did not understand the process.  I find no merit in this ground because there is no record in the decision of a complaint of this nature from the applicant.  There was an interpreter present to assist him if he had required it.  There was obviously discussion of an adjournment of the appeal which was refused; if his complaint was real he would have raised it then.

18.The applicant is also aggrieved that his credibility was doubted and the adjudicator did not find him a genuine claimant despite him answering all the questions truthfully.  He gives no particulars to support this ground.  Recently the Court of Appeal in Re Lakhwinder Singh 2018 HKCA 246 at (13) said that;

“evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such a valuation based on the evidence available to them. The court will not usurp their roles as primary decision-makers. Judicial review is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in absence of any legal error.”

The adjudicator gave full reasons for his finding the applicant’s credibility was lacking, the TCAB had a rational basis defined against the credibility of the applicant.  I will therefore not interfere with the adjudicator’s finding.  There is no merit in this ground.

19.Lastly, the applicant submits the adjudicator relied on Country of Origin information that was hearsay, out of date and not officially recognised.  Again he does not provide any particulars to support this ground.  In view of his finding that the applicant was not credible, the adjudicator did not need to consider such information and State protection.  He did not accept the applicant was at any risk if refouled.  There is no merit in this ground.

18.I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

19.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 19^th day of June 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