Anyiam Prince Nnamaka v. Torture Claims Appeal Board and Another

HCAL 887/2017

[2018] HKCFI 1373

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 887 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 Bruno Chan:

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 18 January 2011 with permission to remain as a visitor up to 8 February 2011 when he did not depart but instead overstayed until he was arrested by the police on 2 October 2012.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on 4 October 2012 with the Department on the basis that if he returned to Nigeria he would be harmed or killed by certain money-lenders for failing to repay his loans and/or by the militant Islamist group Boko Haram for being a Christian.  He has since been released on recognizance pending the determination of his claim. 

2.The applicant was born and raised in Calabar, Cross River State, Nigeria to a Christian family where Muslims were the majority in his home district.  After leaving school the applicant worked in a trading company and in 1996 he started his electronics trading company in Sabo-Gari.  In 2008/2009 in order to expand his business and for purchasing goods he borrowed 2 million Nigerian Naira from two money-lenders repayable by 2010 at a monthly interest payment at 10% of the principal which he was initially able to make without problem.

3.However, one day in about mid-2010 the militant Islamist group Boko Haram set fire to the market where the applicant’s shop was located, and as a result his shop together with many other shops in the neighborhood were burned down, and the applicant had to close down his business and went to stay with his cousin in Lagos.

4.One day in November 2010 the money-lenders came to his cousin’s home looking for the applicant for repayment of his loan, and when they could not find him in the house, they left a message warning him of serious consequences if he did not repay his loan.  Several days later the money-lenders returned and when they still could not find the applicant, they started to break things in the cousin’s house and only left when the neighbors called the police.  Thereafter the applicant started to receive threatening phone calls from the money-lenders, and fearing for his safety he decided to leave Nigeria which he did on 18 January 2011 when he flew to Hong Kong where he subsequently lodged his non-refoulement claim, for which he later completed his Non-refoulement Claim Form on 25 June 2015 with legal representation from the Duty Lawyer Service.     

5.By a Notice of Decision dated 3 September 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“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”).

6.In his decision the Director found the low intensity and frequency of past ill-treatment from the money-lenders indicative of a low future risk of harm upon the applicant’s return to Nigeria, that the attack of the Boko Haram was a one-off incident in which the applicant was not specifically targeted, that his dispute with the money-lenders is a private monetary matter without any evidence of any involvement of the state or the police that state protection would be available to the applicant if resorted to, and that reasonable internal relocation alternatives are available in Nigeria with a large population of 181 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 working experience to move to areas away from his home district such as Abuja where he can safely live and work free of any threats from his money-lenders or the Boko Haram.

7.By a Notice of Further Decision dated 8 February 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

8.By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which appeal he filed on 22 September 2015, and for which he attended an oral hearing on 27 April 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board when he also confirmed that he was no longer concerned about the Boko Haram and that his only fear was harm from the money-lenders.  On 29 September 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board found a number of significant inconsistencies and implausibilities in the applicant’s evidence about his loan from the money-lenders that caused doubts over his claim, but that even if true it was a private monetary dispute that state protection would be available if such risk of harm from the money-lenders still persisted after all these years, and that reasonable internal relocation alternatives are also available in other areas in Nigeria for the applicant to live and work safely that he would not be entitled to non-refoulement protection in Hong Kong.  

10.On 14 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but neither in it nor in his supporting affidavit of the same date did he put forward any grounds for his intended challenge other than just exhibiting copies of their earlier decisions, notice of hearing and the hearing bundle for his appeal to the Board.  

11.As noted by the Court of Appeal in TK v Jenkins [2013] 1 HKC 526, the court in judicial review does not sit on appeal from the decision of the Director or the adjudicator in dismissing the claim, but instead only plays a supervisory role by looking at its legality under the public law involving usually the broad grounds of any error of law committed by the Director or the adjudicator, or any procedural unfairness, or whether the decision is irrational or Wednesbury unreasonable in the public law sense.

12.Here the applicant did not even say in his affidavit that the Director or the adjudicator had erred in their decisions, while at the hearing of his leave application he merely stated that the Director and the Board had not properly considered his claim but without providing any particulars or specifics or elaborations as to how or where they had erred in their decisions.  Nevertheless, having proceeded to consider their decisions 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.

13.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 22^nd 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