Maman Sani Issaka v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 396/2018

[2019] HKCFI 1519

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 396 of 2018

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 Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 42-year-old national of both Niger and Nigeria who arrived in Hong Kong on 10 November 2013 with permission to remain as a visitor up to 24 November 2013 when he did not depart and overstayed until 26 November 2013 when he was arrested by police.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to Niger he would be harmed or killed by his mother’s Muslim relatives for his conversion to Christianity, or by the terrorist group Boko Haram in Nigeria who were targeting Christians for terrorist attacks.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born as a Muslim in Niger to a Nigerien mother and a Nigerian father and hence of dual nationality.  At the age of seven his parents were divorced and the applicant was brought by his father to live in Nigeria where his father who was then also a Muslim subsequently converted into a Christian, while his mother remained as a Muslim in Niger.

3.After leaving school the applicant first worked as a carpenter and later operated a food stall in Nigeria, and in February 2012 he followed his father’s footstep by converting into a Christian, a decision which however greatly upset his mother that during his visit in August 2012 in Niger, he was angrily confronted by her other family members and relatives and was warned that unless he agreed to convert back to being a Muslim, he would be regarded as a traitor and that they would not let him see his mother again.  As a result the applicant became frightened and left Niger to return to Nigeria.

4.One day in about February 2013 whilst on the street in Nigeria the applicant was approached by three men who claimed to be sent by his mother’s relatives to see whether he had converted back to Muslim, and when the applicant told them that he would not be willing to do so, they warned that he would be treated as a traitor to the Muslims with serious consequences before they left.

5.Three weeks later when the applicant was alone in his shop, the same group of men came into his shop and attacked him with wooden sticks before fleeing the scene.  As a result the applicant suffered bruises all over his body.  After receiving some medical treatment he reported the matter to the police who said they would investigate but nothing came to fruition.

6.One day in March 2013 whilst on his way home after attending church services, the applicant was attacked by two unknown men with punches all over his body with a warning that he would be killed if he continued to attend church before they left the scene.  As a result the applicant became fearful for his life and took shelter at his father’s place in in Benue State.

7.In May 2013 the terrorist group Boko Haram carried out a bomb attack in a plaza where the applicant’s father worked, and although they were not hurt in the incident the applicant and his father decided to move to Adamawa State to be with a friend, but after another bomb attack in July 2013 in the church attended by both of them when the applicant’s father was injured and was hospitalized for three days, the applicant became afraid to remain in Nigeria and therefore fled to Niger to stay secretly with his mother who however advised him that given the hostility shown by her relatives and other Muslims towards him it would not be safe for him to remain in Niger either, and so after some discussions with a friend the applicant decided to leave Niger for his own safety, which he did on 9 November 2013 when he flew to Hong Kong where he subsequently overstayed and lodged his non-refoulement claim, for which he later completed a Non-refoulement Claim Form on 11 March 2016 upon obtaining legal representation from the Duty Lawyer Service, and attended screening interview before the Immigration Department when he further disclosed that he had since been informed by his friend that his father had subsequently died in another terrorist attack by the Boko Haram in Nigeria, while his mother had also been killed in Niger by other Muslims in her village for harboring him before his departure in 2013.

8.By a Notice of Decision dated 19 August 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 the Hong Kong Bill of Rights (“HKBOR”) (“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”).

9.In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm to the applicant from his mother’s relatives or the terrorists group Boko Haram upon his return to Niger and Nigeria respectively as low due to the absence or low intensity and frequency of past ill-treatment from them, that after all these years that any enmity from his mother’s relatives would have dissipated in Niger, that he was never specifically targeted by the Boko Haram in Nigeria, that in the absence of any official involvement that state or police protection would be available to the applicant in both Niger and Nigeria according to reliable and objective Country of Origin Information (“COI”) on those countries, which also show that reasonable internal relocation alternatives are available in either Niger with a large population of 18 million people spread across a vast territory of more than 1.2 million square kilometers, or in Nigeria with an even larger population of 181 million people spread across a similarly vast area of more than 923,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other part Niger away from his mother’s home district where it would be difficult if not impossible for her relatives to locate him, or in Nigeria in large cities such as Lagos where the chances of him being specifically targeted for terrorist attacks by Boko Haram would be minimal.

10.By a Notice of Further Decision dated 20 July 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”).

11.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, for which he filed his notice of appeal on 1 September 2016, and for which he attended an oral hearing on 7 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 26 January 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.In its decision the Board upon hearing the applicant in evidence found his account at all points vague, colourless, lacking in any lively detail or content and was presented to the adjudicator as if he was reading from a prepared script that his testimony did not have the ring of truth and was stereotypical and unconvincing, and when these difficulties were put to him at the hearing he was unable to provide any reasonable explanation and instead blamed it on the possibility of his memory affected by being hit on the head in one of his beatings but without any medical evidence, that the Board concluded that he is not a witness of truth and that no credence could be attached to any of his claims, and rejected them under all the applicable grounds.

13.On 12 March 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form, nor in his supporting affirmation of the same date to which he simply exhibited copies of all his previous documents and the decisions of the Director and the Board.

14.As it has been held in Re Moshsin Ali [2018] HKCA 549, that the decision of the Director is no longer susceptible to judicial review once an appeal to the Board is pursued by a non-refoulement claimant, as did the applicant in his case, since the Director’s decision is superseded by the Board’s decision and is therefore not open to the applicant to challenge the Director’s decision by way of judicial review, I shall accordingly focus on the applicant’s intended challenge of the Board’s decision.

15.As purposely stated in the Board’s decision, since the adjudicator found the initial statements provided by the applicant to the Director remarkably brief with almost no details given, he therefore found it necessary not just to hear the applicant’s testimony at the appeal hearing but also to question him closely so as to properly establish the facts of his claim with long series of open, detailed and probing questions both to assist him to elicit a reasonable amount of detail and descriptive content, and also to test his assertions and to seek his views about those COI obtained by the Board regarding the situation in Niger and Nigeria, and whereupon the adjudicator was able to properly and fully analyze and evaluate the applicant’s claims and then made his findings with reasoning in details in paragraphs 25 – 41 of the Board’s decision before arriving at the conclusion that the applicant’s claim has failed on all applicable grounds.

16.As noted above the applicant did not put forward any ground for his intended application, nor did he identify any error in the Board’s decision or even give any indication that it might be considered as unfair or unreasonable.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality being clearly and properly identified in their decisions by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

17.In the premises and having proceeded to consider the Board’s decision with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness or irrationality in the decision, nor any failure on its part to apply high standards of fairness in its consideration and assessment of the applicant’s claim.

18.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 13^th day of June 2019.

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