Robert Adjagba v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 872/2017

[2018] HKCFI 1982

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 872 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 40-year-old national of the Republic of Benin but was born in Nigeria, and had always lived in Nigeria until his arrival in Hong Kong on 18 June 2015 as a visitor but was arrested on 22 June 2015 for assaulting a police officer.  After he was convicted of the offence and served 31 days’ imprisonment, he was referred to the Immigration Department for repatriation when he lodged a non-refoulement claim on the basis that if he returned to Nigeria or Benin he would be harmed, or killed, by his former disgruntled customers for failing to deliver their business order on time or at all.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born to Beninese parents in Ihiala, Anambra State, Nigeria where he had always lived with his family. After leaving school he assisted in his family’s wholesale clothing business started by his father and which had since his passing been run by his elder brother V.

3.In 2014 he was sent by his elder brother to China to look for opportunities to expand their family business during which he would stay at his friend’s place in Guangzhou whilst his elder brother would send orders to him for various goods and products to be shipped back to Nigeria and neighboring Benin for sale to their customers.

4.One day in April 2015 he received from his elder brother an order placed by a group of Beninese government officials for some 3,000 gowns with specific designs and inscriptions for use in witchcraft practices and religious rituals, for which he paid a supplier in Guangzhou to make and deliver the gowns within 17 days.

5.However, when the supplier was unable to deliver the gowns on the agreed date and asked for further time, and after the applicant had informed his elder brother, he was told that the Beninese customers had warned that they required the gowns for the religious ceremony of an important festival in September 2015, and that if their order could not be delivered on time the ceremony would be interrupted and they would search them out and kill them as human sacrifice.

6.The applicant therefore paid his supplier more money in the hope that the gowns could be delivered before the deadline, but by then his visa in China was due to expire and he had to leave China for Hong Kong on 18 June 2015 pending the renewal of his visa, and whilst in Hong Kong he was told by his elder brother that he had fled home and gone into hiding from the threats of the Beninese customers.  He then lost contact with his brother.

7.After the applicant tried to contact his supplier in Guangzhou but was unable to do so, he went to the Hong Kong Airport on 22 June 2015 to try to get a ticket to fly home so as to explain the situation to the Beninese customers, but he got into a dispute with the staff at the counter and was arrested by police and subsequently charged for assault and sentenced to imprisonment for 31 days.

8.Upon his discharge from prison and while he was being detained by the Immigration Department pending deportation, the applicant lodged his non-refoulement claim and was subsequently released on recognizance pending the determination of his claim, during which he received a telephone call from his mother in Nigeria that although she had encountered no further problems from the Beninese customers, she was still very concerned for his elder brother who had not been heard of since his disappearance.  Upon obtaining legal representation from the Duty Lawyer Service, the applicant subsequently completed his Non-refoulement Claim Form (“NCF”) on 15 April 2016 and then attended screening interview before the Immigration Department.

9.By a Notice of Decision dated 23 June 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the 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”).

10.In his decision the Director found the applicant’s claims of threats from the Beninese customers were all hearsays uncorroborated by any independent evidence, that even if they were true the fact that the applicant’s mother had not encountered any problem from the Beninese customers shows that they have no real intention of harming the applicant or his family, that while accepting that the applicant may indeed face such a real risk in Benin but not so in Nigeria, that in the absence of any official involvement of the Nigerian government that state protection in Nigeria would be available to the applicant if resorted to, and that reliable Country of Origin Information (“COI”) show 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 to move safely to other areas away from his home district such as Lagos where it would be difficult if not impossible for those Beninese customers to locate him.     

11.By a Notice of Further Decision dated 9 June 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”).

12.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 5 July 2016, and for which he attended two oral hearings on 14 June 2017 and 30 August 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 1 September 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

13.In its decision the Board accepted on the applicant’s own case that he faces a real risk of harm from the Beninese customers who are Benin public officials if he is refouled to Benin, but as the harm was directed at him due to a private dispute between him and his customers and in the absence of any evidence of any involvement by Nigerian public official or person acting in an official capacity or with direct or indirect acquiescence of any Nigerian public official in those threats, it concluded that the applicant has not established his non-refoulement claim against Nigeria which follows that he can therefore be refouled to Nigeria.

14.On 13 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in it he put forward the following grounds for his intended challenge:

(1)  that the adjudicator failed to apply the necessary rigor in the examination of the issues and made errors in the determination of facts that led to an unreasonable decision; 

(2)  that the adjudicator failed to have reasonable regard to COI as to the threats to life in Nigeria and in particularly to the applicant; and

(3)  that the adjudicator failed to apply the necessary high standards of fairness in the consideration of the applicant’s claim and in the refusal to accept his account of the facts of his situation.

15.In support of his ground (1) the applicant referred to paragraphs 10, 12 and 28 – 38 of the Board’s decision to argue that the adjudicator had erred in finding that he was both of Nigerian and Beninese when he was born to Beninese parents and is therefore only of Benin nationality, and hence the adjudicator incorrectly interpreted and applied the evidence in failing to distinguish between residency and nationality and therefore erred in his decision.

16.It seems clear to me from reading and examining carefully those paragraphs referred to by the applicant above that the adjudicator started off with his findings as to the applicant’s nationality and residency by first correctly identifying the issue in paragraph 28 as follows:

“ At the first hearing, I discussed with the Appellant at length his nationality. Consistent with his claims in the NCF, he told me he was born in Nigeria to Beninese parents. He said he is a dual citizen of both Benin and Nigeria. Benin by descent and Nigeria by place of birth. He obtained a Benin passport at the recommendation of Mr V. He never applied for a Nigerian passport, but believed he was entitled to one. He has a Nigerian ID card, but did not bring that document with him to Hong Kong. He lived all his life in Nigeria, other than some trips to Benin, prior to going to Guangzhou. He did all his schooling in Nigeria and he told me he was entitled to receive medical treatment.”

17.The adjudicator then went on to examine the evidence and found that the applicant is indeed a citizen of Benin by descent, but accepted at the first hearing that the information as to whether he is a citizen of Nigeria was less clear, and he called for a second hearing to enable the applicant to obtain further information and to receive further evidence from the applicant and concluded with these findings as to the applicant’s status in Nigeria:

“ 37. I am mindful the Appellant’s consistent evidence he has lived all of his life in Nigeria. It seems implausible he would be able to do so without some lawful status in Nigeria. At both hearings I told the Appellant I was considering the possibility he may have a real risk of harm from the customers in Benin, but perhaps not in Nigeria and therefore he could return to Nigeria. Even with my telling that to him, he maintained he is a citizen of Nigeria. I consider such a declaration against his better interests to strongly weigh in favour the Appellant is providing credible evidence he is a citizen of Nigeria. Although I have not sighted the document, I consider the Appellant having held a Nigerian ID card in the past also weighs in favour of his being a Nigerian citizen. Finally, I place weight too on the Appellant’s mother leaving the voice message to him in the Igbo language was weighing in favour of finding the Appellant is Igbo.

38. Having regard to the country information set out above, I consider it more probable than not the Appellant is a citizen of Nigeria through Nigeria being his place of birth and one of his parents or grandparents being a Igbo, which is a community indigenous to Nigeria.  After balancing all of the evidence, I find the Appellant is a citizen of Nigeria by birth.”

18.It is therefore clear to me that the adjudicator had based his findings of the applicant being a citizen of Nigeria on both undisputed facts and the applicant’s own evidence, and I do not see any basis in the applicant’s complaints that there was any error in the adjudicator’s conclusion over this issue.

19.As for the complaint under ground (2) of the adjudicator failing to have regard to COI as to the threats to life in Nigeria, the applicant did not provide any particulars or elaboration as to how they applied to his case, as it has been held by the Court of Appeal that the mere existence of a consistent pattern of gross, flagrant or mass violation of human rights in the home country per se does not constitute a sufficient ground for determining that a particular person will be in danger of being subjected to such risk upon his return: see Re RS CACV 206/2012, 20 August 2013.  There is no basis to accept that upon his return to Nigeria the applicant would face any real and personal risk other than that identified by the Board but which the applicant was found to have failed to establish in Nigeria.

20.As for his last ground of complaint of the adjudicator failing to apply high standards of fairness in the consideration of his claim by refusing to accept his account or evidence as to his business dealings with his supplier in China which led to the eventual failure to deliver the gowns to the Beninese customers, again from a careful examination of his decision I find the adjudicator in fact accepted the applicant’s account which led to the threats from those customers in Benin, and I do not see any relevancy of such complaint of the applicant has to the Board’s conclusion of his failure to establish his claim on all applicable grounds if he is refouled to Nigeria.

21.In the premises and having proceeded to consider the decisions of both the Director and the Board 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.

22.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 7^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