Umenwa Uchenna Nichodemus v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 788/2017

[2018] HKCFI 1750

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 788 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 on legally on 27 November 2010 and was arrested by the police on 21 September 2015 for overstaying.  He was transferred to the Immigration Department on 23 September 2015.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 25 September, 8 and 15 October 2015.  He was released upon recognisance on 27 November 2015. His NRF claim form was submitted on 21 December 2015.

2.The Applicant attended a screening interview on 16 March 2016.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 29 August 2016 and by Notice of Further Decision (re BOR 2) on 6 June 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 8 September 2016 and 6 June 2017 respectively.  The Adjudicator of the TCAB, Mr Evan Ruth, heard him on 22 June 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2.  He refused his appeal on 19 September 2017.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 19 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 and Igbo.  He was born in Ugwa, is single and is a Christian.  He has 21 years of work experience including trading in electronic goods and watches.  He is a member of the People’s Democratic Party (‘PDP’), which he joined in 2003 and was active in the movement with some degree of local power which included seeking to suppress opposition parties including the current ruling party, the All Progressive Congress (“APC”).  In 2007, the Applicant took part in rallies where violence ensued on both sides and as a result he received injuries including being shot in the leg.  These were not targeted attacks, they were general party upon party aggression.  As a result, arrests were made of members of both parties.  The Applicant believed the police were also looking for him and he fled to Lagos in 2007.  From there he moved to a number of other locations as he feared being found by his political foes.  This did not stop the Applicant from continuing his trading business and from going on international trips including Hong Kong.  The Applicant made no claim for refugee status at this stage as he believed his position in Nigeria to be manageable.  The Applicant experienced no difficulties travelling on his Nigerian passport but put this down to bribery of officials by his boss.  Eventually, the Applicant left Nigeria for Hong Kong on 26 November 2010, on business but on arrival in Hong Kong he lost US$300,000 in his safekeeping and became afraid of reprisals from the company which employed him as it had mafia connections.  The Applicant maintains that because he failed to communicate with these people, they killed his father.  Accordingly, the Applicant believes the authorities want him for his involvement in political rallies and gangsters want him because he owes them money.

The non-refoulement claim

5.Under the Unified Screening Mechanism (“USM”), the Applicant’s claim is to be 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 the death penalty imposed upon him; or be the victim of genocide or otherwise be deprived of his rights under BOR 2.

6.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 established the factual basis of his claim.  The Director and Adjudicator must then assess the level of harm the Applicant says he fears.  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

7.The Director analysed the Applicant’s claim on all applicable grounds.  He considered a wide range of documentary evidence including documentation submitted by the Applicant as to the general situation in Nigeria at present.  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, which he failed to do other than by reference to general press information.  The Director took the view that the police were acting within the remit of their public duty in seeking to interview the Applicant for his part in the violence which erupted at various political rallies.  He did not accept that the police were looking for him considering the fact that he had been able to travel so freely and upon his own passport.  Since his arrival in Hong Kong, the Applicant has neither been threatened or hurt by those he alleges seek him and wish to do him harm and therefore the risk to him being harmed in the future was assessed to be low and he could safely and reasonably relocate.  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.  In so far as the Further Decision is concerned, the Applicant was informed by letter dated 22 May 2017 that his claim under BOR 2 was to be considered and invited to add to his existing submissions but he did not do so.

Decision of the Adjudicator

8.The Adjudicator analysed the Applicant’s claim on all applicable grounds.  He arranged for an oral hearing and treated the appeal as a rehearing.  He correctly set out the law and key legal principles including the burden and standard of proof.  

9.The Adjudicator disbelieved the Applicant.  He did not find him to be a witness of truth and the account he put forward was one he had learnt and not personally experienced.  When tested he fell short in very many respects.  The Adjudicator went into considerable detail as to why and where the Applicant was found to be lying.  Accordingly, he had failed to establish his claim to the necessary standard, the burden being upon him to do so.

Leave to apply for judicial review

10.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

11.There were no grounds of review.  The Applicant asks for a re-hearing of his appeal.  He has not complained of any specific procedural irregularity, unfairness or unreasonableness.  The Applicant has a duty to state the grounds of his intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

12.I have considered the papers 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.  There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

13.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 5^th day of September 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