Akinbobola Idowu Alexandra v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 701/2017

[2018] HKCFI 1684

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 701 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 the Applicant being present/absent in open court;

Order by The Honourable Mrs Justice Campbell-Moffat:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Procedural history

1.The Applicant entered Hong Kong legally on 21 June 2011 but overstayed since 12 July and was arrested by the police on 30 September 2011.  He was transferred to the Immigration Department on 2 October and released upon recognisance on 11 November.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 3 October 2011.   His NRF claim form was submitted on 31 March 2015.

2.The Applicant attended a screening interview on 13 May 2015.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 28 May 2015 and by Notice of Further Decision (re BOR 2) on 14 June 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 10 June 2015.  The Adjudicator of the TCAB, Chow Siu Hung, heard him on 19 August 2016 and 25 July 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2.  The Adjudicator refused his appeal on 15 September 2017.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 3 October 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

4.The Applicant is a Nigerian national.  He was born on 4 June 1973 in Ondo, Nigeria and is 44 years of age.  He received 12 years of education up to secondary school level and was self-employed between 2004 and 2009, as a furniture retailer.  He had a partner with whom he had two sons but she died in April 2009.  The Applicant’s claim arises out of his relationship with his late partner “Rebecca”.  He met Rebecca in 2002 and they lived together.  She gave birth to their sons in 2005 and 2007.  The fact that they were not married gave cause for concern to Rebecca’s family, who were wealthy and with political influence in Delta state.  Her father is a politician in the People’s Democratic Party.  The family blamed the Applicant for the fact that Rebecca died during complications in childbirth in a hospital in Lagos state when she should have been returned to Delta state to give birth. Not surprisingly, immediately after her death, emotions ran high and members of Rebecca’s family slapped the Applicant.  He was not seriously injured as a result and he did not report the matter to the police.

5.Approximately one week later, Rebecca’s uncle, who was in the Nigerian Army, came to his shop with six other uniformed men and damaged the furniture.  This incident was reported but the police were reluctant to deal with it as the incident had been carried out by members of the Nigerian Army.  The immediate dispute was as to whether the Applicant should still marry Rebecca despite her demise.  There also seems to be a claim that the Applicant had killed Rebecca as part of a ritual and in order to make money for construction on a piece of land owned by the Applicant.  The tension between the Applicant and Rebecca’s uncle grew to the extent that the Applicant left home to avoid him and thereafter, the uncle continually made threats against his life to others.

6.In 2010, the Applicant maintains that Rebecca’s family attempted to kill the Applicant’s father by burning down his home.  Although his father clearly identified the people who carried out this crime as Rebecca’s family, and the incident was reported to the police, no one has been arrested.  In June 2011, the Applicant came to Hong Kong to purchase mobile phones but whilst here he heard that Rebecca’s uncle had once more gone to his furniture shop and was still threatening to kill him.  His landlord also told him that members of the army had been maintaining observations on his home.  As a result, he decided to stay in Hong Kong.  He says he surrendered himself to the police on 30 September 2011.

The non-refoulement claim

7.Under the Unified Screening Mechanism (“USM”), the Applicant’s claim was assessed on all applicable grounds which are:

i. Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”).  Under torture risk, the Applicant must establish he has substantial grounds for believing he will be subjected to torture if returned to his home state.  Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal. The standard of proof is a low one.

ii. 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 (“HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”).  Under BOR 3, the Applicant must establish that he has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to his home state.  The level of such mental or physical torture etc. must reach a minimum level of severity.

iii. 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”).  Under “persecution risk”, the Applicant must establish that he has a well-founded fear that there is a real chance that he will face persecution based upon race, religion, nationality or membership of a social group or political opinion if he is expelled and returned to his home state.

iv. Risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”).  Under BOR 2, the Applicant must establish a real risk that he will be arbitrarily deprived of his life, have a death penalty imposed upon him; or be the victim of genocide or otherwise be deprived of his rights under BOR 2.

8.It is the duty of the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the Applicant had first established the factual basis of his claim.  The Director and Adjudicator must then assess the level of harm the Applicant says he fears on the basis of those facts.  Each ground of claim above has a relevant level of risk.  It is for the Applicant to establish that he is the subject of such risk.  Under the HKBORO, he must show substantial grounds for believing that the harm which he fears is “foreseeable, real, personal and present”.  The question is whether there is a real risk or real chance of the occurrence or recurrence of the harm which he fears.

Decision and further decision of the Director

9.The Director analysed the Applicant’s claim on all applicable grounds.  He considered a wide range of documentary material relevant to Nigeria and he discussed that material with the Applicant including various avenues open to the Applicant to ensure he can obtain protection and redress.  The Applicant maintained that he was unaware of these opportunities. The Director noted that the political climate in Nigeria had shifted since the Applicant had left and that the Applicant accepted that neither he nor any member of his family or any colleague had been accused, charged, arrested, detained or imprisoned in Nigeria.  He correctly set out the law, key legal principles and made reference to relevant materials.  The Applicant was given every opportunity to state his case and to supplement the evidence before the Director.  He was made aware of all of the Director’s concerns and given an opportunity to answer them.  In coming to his decision to reject his claim under the various heads, he acted reasonably and explained his decision on the merits in a clear and intelligible manner.  He noted that this was an entirely private matter and, although there may have been threats, no actual action has been taken to attempt to kill the Applicant.  In so far as the Further Decision is concerned, the Applicant was sent a letter on 18 May 2017, in which he was notified of his right to make a claim under BOR 2 and to make further submissions in writing in respect of such claim.  He submitted further documentation on 1 June 2017 which was considered by the Director.  That failed to establish a personal and real risk that his absolute and non-derogable rights under BOR 2 would be violated if returned to Nigeria.

Decision of the Adjudicator

10.The Adjudicator analysed the Applicant’s claim on all applicable grounds and arranged for an oral hearing on two occasions and treated the appeal as a rehearing.  The law and key legal principles were correctly set out and applied including the burden and standard of proof. The Adjudicator made a thorough analysis of the Applicant’s claim but found him lacking in credibility.  His evidence before the Adjudicator was altered in material respects, which the Adjudicator found could not be addressed merely as an issue of interpretation.  The Applicant can read, write and speak English.  Inconsistencies in his claim form and other evidence were pointed out to him and he had the opportunity to address them.

Leave to apply for judicial review

11.Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status.  This is an application to apply for leave to judicially review the Decisions of the Director of Immigration and the Adjudicator.  The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

12.There were no grounds of review.  The Applicant asks for a re-hearing of his appeal.  He has not complained of any procedural irregularity, unfairness or unreasonableness but I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

13.Despite the fact that the Applicant failed to submit any grounds of review, I have considered the papers, grounds and submissions carefully.  I have not found any error of law or procedure.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  Despite the onus being upon the Applicant, the Director and Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately.  They gave him every opportunity to address their concerns.  The Adjudicator, in particular, did not find him to be a credible applicant and explained in detail why that was the case.  There can be no criticism of their determinations, which were open to them on the facts and eminently reasonable.

14.In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.

Dated 27^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