Eze Patrick Chibuike v. Director of Immigration and Another

HCAL 861/2018

[2019] HKCFI 2288

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 861 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 34-year-old national of Nigeria who arrived in Hong Kong on 2 December 2014 with permission to remain on an employment visa valid up to 2 December 2015, but when he later left his then employment and applied for a visa for another employment, his application was refused and was required to leave by 10 March 2016 when he did not depart and instead overstayed until 5 October 2016 when he surrendered to the Immigration Department and raised 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 Progressives Congress (“APC”) for refusing to join their party and/or by the Nigerian authority for being a member of the outlawed Movement for the Actualization of the Sovereign State of Biafra (“MASSOB”) and Indigenous People of Biafra (“IPOB”). He was subsequently released on recognizance pending the determination of his claim.  

2.The applicant was born and raised in Umunevo, District Amagunze, Enugu State, Nigeria.  After obtaining a bachelor’s degree of science from the Nigerian Institute of Management in Zamfara State of Nigeria, he worked in various jobs in Enugu State, and became a supporter of the political party People’s Democratic Party (“PDP”) and worked as a part-time secretary for the party in Enugu State.

3.In January 2014 he also became a supporter of MASSOB and IPOB, both of which advocated an independent state of Biafra for the Igbo ethnic people in Nigeria after attended certain talks by their members and became sympathetic to their cause.

4.One day in February 2014 he was told by a friend and fellow PDP supporter that some APC supporters were looking for him to invite him to join their party due to his work and reputation in PDP, but if he refused they would then eliminate him from PDP by killing him.  Upon hearing it and although he had not yet been approached by any APC supporter,he became concerned for his safety and therefore fled to Anambra State in March 2014 where he stayed in his cousin’s home without any incidents.

5.In April 2014 and on his cousin’s advice he applied for employment in Hong Kong,and when he was offered a job as a marketing manager by a Hong Kong company, he was then issued an employment visa and travelled to Hong Kong on 1 December 2014 to commence his employment.

6.However, when he was later refused by the Immigration Department in March 2015 to change to another employment, he did not depart and instead overstayed in Hong Kong,during which he noticed that APC had won the general election and become the ruling party from which he feared of persecutions against him as a PDP member, and that the Nigerian government had also made mass arrests of members and supporters of MASSOB and IPOB that he feared that he would be arrested and tortured by the police upon his return to Nigeria,he therefore surrendered to the Immigration Department in October 2016 and raised his non- refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 27 December 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.By a Notice of Decision dated 12 January 2018 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”).

8.In his decision the Director took into account all the relevant circumstances of the applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed by those APC supporters or the Nigerian authorities upon his return to Nigeria due to the absence of any past ill-treatment from them, that any threats from those APC supporters were based entirely on hearsay without any reliable or independent evidence that any such threats did exist, nor is there any reliable or independent evidence that the applicant was ever a member of MASSOB or IPOB or that he was being pursued by the Nigerian authorities, 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 190 million people spread across a vast territory of more than 910,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied highly educated adult with work experience to move to other part of Nigeria away from his home district in populous states such as Anambra State where the majority of the population are Igbo and where it would be difficult if not impossible for those APC supporters to locate him.

9.On 24 January 2018 the applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 12 April 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 30 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found that the applicant failed to adduce any credible evidence to show that he was a person of adverse interest to the Nigerian government, or that he had ever been a member of MASSOB or IPOB at all, and that even if he had been such a member that his involvement would have been so minor and for only two months before his departure for Hong Kong to attract any interest from the Nigerian authority that it was not accepted that his political activities had placed him at risk of harm, or that he has any well-founded fear of being persecuted by reasons of his political views, that there was also no evidence that the Nigerian government and/or state or authorities in Nigeria had acquiesced in the alleged ill-treatment of the applicant, and concluded that his non-refoulement claim failed on all applicable grounds.

11.On 17 May 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for his intended challenge:

(1) that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the applicant’s case which had led to an unfair outcome of rejecting his non-refoulement claim;

(2) that the Director failed to recognize that the applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies and politicians or that it was the direct result of police misconduct in assessing his claim;

(3) that the Director failed to recognize that the state would be rendered liable to the applicant caused by the failure of the state and the police to provide reasonable protection for its citizens under the duty of due diligence;

(4) that the Director failed to take into account or to give sufficient weight to such argument before reaching the decision;

(5) that the Director failed to consider or give sufficient weight to relevant COI that would support the applicant’s claim that the police in Nigeria would not be able to protect its citizens;

(6) that the Director had shown an unfair attitude in arriving at her pre-conceived conclusion which would render such decision void;

(7) that the Director failed to recognize that corruptions and incompetency of administration in Nigeria was still a very serious problem which would support the applicant’s case; 

(8) that the Director failed to attain a high standard of fairness in arriving at her decision;

(9) that the adjudicator failed to make sufficient enquiry before finalizing the determination that the applicant’s case failed on his credibility; and 

(10) that the adjudicator failed to give sufficient chance for the applicant to provide relevant evidence for his non-refoulement claim as well as his appeal. 

12.These are however all just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decisions,or in what way did they fail to take into account relevant COI or to apply high standards of fairness in assessing his claim, or why would state acquiescence be relevant to his claim,or how did the adjudicator fail to give him the opportunity to produce relevant evidence in support of his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and that it was factually incorrect for him to claim to have been tortured at the behest of or in collusion of the Nigerian police or authorities when even on his own case that he had never been assaulted let alone tortured by anyone in Nigeria.  As such I do not find any basis or merits in any of these grounds or complaints of the applicant.

13.On 14 May 2019 the applicant also filed a submission containing what appear to me additional grounds for his non-refoulement claim of fear of being persecuted by the Nigerian authorities for having made derogable remarks against its present president during the time when he was campaigning for PDP, and that the Nigerian government has been killing Christians in the northern and southern parts of Nigeria that internal relocation would not be an option for him to return to his home country.  In support of his claim he also attached copies of various news and reports on killings of Christians and pro-Biafra supporters by the military and authorities of Nigeria, and at the end of the submission he asked that his claim be reviewed by the Court under all the applicable grounds.

14.His claim of fear of being harmed or killed for being a PDP supporter by the ruling party and the government had in fact already been made before both the Director and the Board and dealt with in their respective decisions, and is therefore in my view just a regurgitation of such claim here.  As for his other claim, it is not clear of the relevancy of the alleged killing of Christians as shown in his documents, as it had never been raised before in his NCF or when he appeared before the Director or the Board, nor is there any suggestion that he is a Christian, now or before, or any intention to become or convert to be one in the near future and hence may risk facing similar fate upon his return to Nigeria. There is simply no such evidence before the Court. 

15.As pointed out by the Board in its decision [61], the applicant had been in Hong Kong since 2014 and even on his own admission had had ample time to gather whatever documents necessary to support his claim, and as most of these additional documents were dated several years back in 2016 or 2017, I find no reason why he could not have produced them before the Director or the Board.  As such and in the absence of any suggestion that he would be able to satisfy the criteria laid down in Ladd v Marshall, viz that those documents could not have been obtained with reasonable diligence for use before the Director or the Board, or that they must be that, if given, they would probably have an important influence on the result of the case, or that they must be such as are presumably to be believed or must be apparently credible though need not be incontrovertible.  In the premises I am not prepared to allow the admission of those documents as his evidence in these proceedings.

16.As has been repeatedly emphasized by the Court of Appeal, 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 being identified 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 Nupur Mst v Director of Immigration [2018] HKCA 524.

17.In the applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 66 – 79 of its decision and with the benefit of hearing him in evidence and in answer to questions raised of his claim, and in the absence of any error of law or procedural unfairness being clearly and properly identified by the applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

18.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.

19.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 25^th day of September 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