Njoku Desmond Ozoemena v. Torture Claims Appeal Board

HCAL 298/2018

[2019] HKCFI 617

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 298 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 Nigeria who arrived in Hong Kong on 5 July 2012 with permission to remain as a visitor up to 19 July 2012 when he did not depart and instead overstayed until 5 May 2015 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 Nigeria he would be harmed or killed by supporters of rival political party All People Congress (“APC”) and/or by the Muslims community and/or the terrorist group Boko Haram for being a Christian.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born in Owerri, Imo State, Nigeria in Igbo ethnicity and was raised as a Christian by his Christian parents.  After leaving school he joined the political party People’s Democratic Party (“PDP”) in which he later became its regional coordinator, and went to work as a salesman in northern Borno State where the population was predominately Muslims, and as a Christian he had to keep a low profile and dressed and acted as a Muslim in order to survive in their community.

3.In 2008 he started his own trading business in Borno State importing mobile phone accessories and garments for sale in Nigeria for which he would frequently travel to Hong Kong to purchase goods and materials.  However, when the local Muslims community started to suspect that he might have converted to Christianity, they started to harass and reject him, and on one occasion even vandalized his home.

4.The situation became worse in 2012 when APC won the general elections and became the ruling party and started to promote the Islamic or Sharia law against Christianity which stirred up civil war and unrest in Nigeria, and the situation was further exacerbated by the rise of the Islamic terrorist group Boko Haram which carried out terrorist activities against Christians in general.

5.One day in mid-2012 he was attacked by a group of men with wooden sticks in front of his home in Borno State but managed to escape and fled to his home district in Imo State where he received medical treatment to his injuries.  Afterwards he returned to the Borno State to continue with his trading business, but when he took a business trip to Hong Kong on 5 July 2012, he was informed by his father that Boko Haram had launched bombing attacks in Borno State and advised him not to return to Nigeria for his own safety, he therefore overstayed in Hong Kong and raised his non-refoulement claim for protection, for which he later completed a Non-refoulement Claim Form on 28 February 2017 and attended screening interview with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 26 April 2017 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 his absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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”).

7.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 him from supporters of rival political party and from the Muslims community upon his return to Nigeria as low due to the low intensity and frequency of past ill-treatment from them, that the asserted past ill-treatment inflicted upon him did not attain the minimum severity for which non-refoulement protection is warranted, that there is no objective evidence that he had ever been specifically targeted by any of his perceived enemies for attacks, that in the absence of official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Nigeria with a large population of 186 million people spread across a vast territory of more than 910,000 square kilometers and that Islamic or Sharia law have only been adopted in several northern states that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to the southern parts of Nigeria such as Lagos State or Abia State where it is safe for Christians to reside without real risk of harm from those APC people or terrorist attacks from Boko Haram.

8.On 9 May 2017 the applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, but he did not attend the oral hearing scheduled on 22 November 2017, and after he also failed to provide any explanation for his absence within seven days of the Board’s written request for him to do so, the Board did not re-schedule for another hearing and proceeded to deal with his appeal in his absence and on papers.  On 15 January 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found that it was unable to assess the applicant’s credibility as to his claim due to his failure to appear for the hearing of his appeal and that the majority of his assertions were not supported by independent evidence, but was of the view that even if they were true that such asserted ill-treatment in the past did not attain the minimum severity under any of the applicable grounds, that there is no evidence to suggest that he had ever been specifically targeted by the APC people or the terrorist group Boko Haram, and that it is open to him to relocate to the south of Nigeria such as Abia State where the majority of the population are Christians and where he as an able-bodied adult with work experience can safely live and work without any real risk of his claimed fear of harm from the APC people or the Boko Haram.   

10.On 26 February 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affidavit of the same date he put forward only one ground essentially that he missed the scheduled oral hearing before the Board because he never received the notice of the hearing, and that it was not fair for the Board to deal with his appeal in his absence.

11.In his affidavit the applicant did not provide any particulars or evidence that he did not receive either the notice of the scheduled hearing for his appeal or the letter from the Board requesting his explanation for his failure to attend the hearing, and if he happened to have changed his address at the material time, he did not provide any such evidence either, as it is the duty of an applicant or claimant to give the authority an address to which correspondence or notice can come to his attention in a timely manner, and the consequence of any delay or default caused by the ineffectiveness of such an address fell on the shoulder of the applicant/claimant: see Islam Raja Rais v Director of Immigration HCMP 881/2017; Said Umair v Torture Claims Appeal Board [2018] HKCA 82; and Re Saqlain Muhammad [2018] HKCA 346.

12.It is also trite that high standards of fairness do not automatically entitle the applicant to a further oral hearing after he failed to attend the first one without any explanation, as it is ultimately a question of fairness.  The applicant has not explained what additional evidence or arguments he would have put before the Board that would advance his claim even in his application now before me, and given the stated facts of his claim, I do see how a further oral hearing would have assisted him to advance his case before the Board.

13.Furthermore, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicant’s claim is localized in the northern part of the country and that it is not unreasonable or unsafe for him to relocate to other part of Nigeria, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

14.In the premises and having considered 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.

15.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 17^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