Amienghemhen Ayere Precious v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL659/2017

[2018] HKCFI 1537

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 659 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 from Lagos and transited to Fiji on 27 April 2016.  However, he was refused permission to land in Fiji and was repatriated back to Hong Kong on 30 April 2016.  On 2 May 2016, a letter from the UNHCR was sent to the Immigration Department stating that the applicant claimed he would be subject to persecution if he returned to Nigeria.  He lodged a non-refoulement protection claim which the Director of Immigration (“the Director”) rejected on 20 July 2016 on three applicable grounds; torture, BOR 3 and persecution.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) against that determination which was heard on 20 October 2016 and the TCAB rejected it on 28 October 2016.

2.The Director then issued a Notice of Further Decision dated 4 January 2017 rejecting the applicant’s BOR 2 risk.  There had been correspondence between the Director and the duty lawyer service representing the applicant prior to that decision.  On 7 November 2016 there was a letter disclosing additional information that the applicant wanted the Director to consider in support of his BOR 2 risk claim.

3.The applicant lodged an appeal/petition to the TCAB against that further decision.  The TCAB determined that appeal/petition without a hearing pursuant to Section 12 of Schedule 1A of the Immigration Ordinance Cap 115 and paragraph 15 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme.  The TCAB rejected that appeal on 23 June 2017.  The applicant then filed a notice of application for leave to apply for judicial review on 21 September 2017 and requested an oral hearing; he appeared in person on 9 March 2018 after his application for legal aid was refused.

Background

4.The basis of his claim was that if he were to return to Nigeria he would be harmed or even killed by the people of Mother Temple, a well-established underground terrorist group because he had decided to quit the group and he faced a risk of harm from the Boko Haram terrorist group which is known for attacking Christians.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and case in detail in their decisions therefore, there is no need for me to repeat it here.

5.The applicant was born in Nigeria, received 14 years of formal education and a national diploma in civil engineering.  He is a Christian and prior to him coming to Hong Kong he was doing missionary work for the assembly of God church on a full-time basis receiving US$200 as an allowance.  For four years before that he was doing it on a part-time basis.  His parents passed away in 2015 and his wife lives in Lagos.

6.In 2010 when he was studying the civil engineering course he was inducted into an ultra-secret terrorist group called Mother Temple; its goal was to help politicians and protect its members from intimidation.  At the initiation ceremony other members drank the applicant’s blood.  He attended meetings, helped politicians, for example he had travelled to parts of Nigeria and hijacked election boxes at polling stations when asked.  He knew policemen who were members of the Mother Temple and would supply guns to the group.  He knew those guns were used to kill members of the Mother Temple who did not follow the rules of the group.

7.In 2013 the applicant wanted to leave the Mother Temple and become a missionary.  He announced it at a meeting of a hundred plus who reacted strongly but did not physically stop him. The applicant travelled to his home village which was one day away where he lived for about three months without encountering any harassment from the Mother Temple.

8.In early 2015 he began to work full-time in his missionary and wrote a book called “freedom from cultism” by hand.  One day he delivered it to a shopkeeper to have it typed it out and as he left the shop he was attacked by three men with weapons; his upper left arm was cut open.  They told him not to publish his book.  His wound required a bandage to heal.  He believes the shopkeeper was connected to the Mother Temple and informed on him.  His parents reported the matter to the police and gave them the shopkeeper’s name but nothing has come of the investigation.

9.In quick succession the applicant received four letters from the Mother Temple threatening to kill him if he did not return to the group.  He was beginning to live under great stress.  In late 2015 both his parents were killed in a bombing incident carried out by Boko Haram terrorists who were targeting Christians in their church.  The applicant did not dare to remain in their village any longer.  He left for Lagos city and remained there for a few months before leaving Nigeria. During those few months he received two more letters from the Mother Temple who had somehow found him in Lagos.  Those two letters were similar threats to kill him if he did not return to the group, he did report those threats to the police.  The applicant then left Nigeria in April 2016 to save his life.

10.The Director rejected the applicant’s torture risk, BOR 3 risk and persecution risk on 20 July 2016 and the adjudicator of the TCAB rejected the applicant’s appeal of that decision on 28 October 2016.

11.The Director rejected the applicant’s BOR 2 risk on 4 January 2017 and the adjudicator of the TCAB rejected the applicant’s appeal of that decision on 23 June 2017.  This application for leave to apply for judicial review only applies to that last decision of the TCAB.

BOR 2 risk

12.The adjudicator, as did the Director, analysed the applicant’s claim for a risk of a violation of his 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).

13.The adjudicator determined the appeal/petition without a hearing. There is no absolute right to an oral hearing and she decided the appeal on the papers.  The same adjudicator had dealt with the applicant’s previous appeal of the other applicable grounds in TCAB decision of 20 October 2016 referred to in paragraph 10 above.  She was very familiar with his case.  She set out Article 2 of HKBORO in her decision.

14.The adjudicator set out the chronology of correspondence between the Director and the duty lawyer service leading up to the Director’s decision to reject the BOR 2 risk claim.  She set out the applicant’s additional facts submitted to the Director which was one paragraph in a letter dated 7 November 2016 and it referred to information passed on to the applicant, informing him that his wife had been attacked by people from Mother Temple and hospitalised but he had no further information of the attack nor the extent of his wife’s injuries.  This was the extent of new information provided to support a BOR 2 risk claim.

15.An oral hearing was deemed unnecessary by her in relation to a rehearing of the BOR 2 risk because it was not warranted.  The applicant had been afforded an opportunity by the Director to adduce additional facts and he had in his letter dated 7 November 2016.  The adjudicator considered that the facts were hearsay in nature and little weight can be afforded to these facts which meant that oral evidence from the applicant would not have advanced his case any further.  In other words, there was nothing new to be addressed from the last time she had conducted an oral hearing.

16.The adjudicator then proceeded to apply BOR 2 in light of her findings and authorities and found there was no real risk the applicant will arbitrarily be deprived of life, have the death penalty imposed on him or otherwise be deprived of his rights under BOR 2 if refouled to Nigeria; his BOR 2 risk claim failed.  The reasons are given in full.  She confirmed the decision of the Director.

Leave to apply for judicial review

17.I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions.  In his affirmation he submits his appeal was procedurally unfair because the Director of Immigration failed to provide an explanation to him of what “all applicable grounds” means as requested in previous correspondence.  He then does go on to say that it is artificial to limit this to BOR 2 and no explanation is provided to him as to why no other rights were considered.

18.This is not a criticism levelled at the adjudicator and her decision-making process. Previous correspondence was not submitted with the affirmation.  It would not be relevant to the adjudicator’s decision.  It is not a ground for consideration as to whether the court should grant leave to apply for judicial review.

19.The only ground of substance in the applicant’s affirmation is a failure by the adjudicator to provide an oral hearing in determining his appeal.  He submits it was fundamentally unfair given the complexity of the issues at stake.  He was denied a chance to be heard particularly in respect of the admission of key further evidence.  However, there is no further particulars as to what that key further evidence is or would have been.

20.The applicant goes on to say that the adjudicator’s assumption that he could not speak to the evidential issues in dispute was fundamentally wrong and without reasonable foundation.  He accuses the adjudicator of summarily prejudging his case.  In the affirmation, the applicant does make reference to a paragraph 8;27 but that does not exist in the adjudicator’s decision.  Nor does any evidential issues that are in dispute.  If there were, she would have to consider an oral hearing to adhere to a high standard of fairness.

21.He accuses the adjudicator of failing to give him a chance to submit evidence of the Mother Temple and an opportunity to explain but the applicant has already had that opportunity before the same adjudicator during the first appeal and it was her specific finding that there is a lack of evidence from him of the Mother Temple.

22.I find the adjudicator’s decision not to hold an oral hearing to be without fault.  She took into account the applicant had been given an opportunity by the Director to provide further material and submissions.  His case was clear and the same as it was previously.  Clearly the adjudicator could see neither a need nor the justification to organise yet another oral hearing merely to recanvass exactly the same case as had already been dealt with and disposed of previously.  Therefore, the adjudicator was of the view that the appeal could be dealt with by way of a paper review.  There was no dispute of fact nor any area of law to deal with and his own case had remained unchanged.

23.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.

24.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 17^th day of July 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