Case Document

100%Judiciary

HCAL 977/2017

[2019] HKCFI 422

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 977 of 2017

BETWEEN

	Agara Isaiah Bishop	Applicant
	and
	Torture Claims Appeal Board / Non-Refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 43-year-old national of Nigeria who arrived in Hong Kong on 23 April 2011 with permission to remain as a visitor, during which he married a local resident but was later arrested by police for trafficking in dangerous drug, for which he was subsequently convicted and sentenced to a seven years and four months’ imprisonment, and after a deportation order was issued against him, he lodged a non-refoulement claim for protection with the Immigration Department on the basis that if he returned to Nigeria he would face the risk of double jeopardy for his drug offence committed in Hong Kong and the resultant inhumane and degrading conditions in Nigerian prison, as well as risks of harm for being a homosexual and a Christian from various terrorists or military groups in Nigeria including Boko Haram, the Movement for the Actualization of the Sovereign State of Biafra (“MASSOB”) and the Niger Delta Avengers (“NDA”).

2.The applicant was born and raised in Abakaliki, Ebonyi State, Nigeria as a Christian and where his father and siblings still live. After leaving school he worked as a salesperson and later as the manager of an electronic company in Lagos, Nigeria.

3.In early 2011 he came to Hong Kong to purchase goods for his company when he courted a local resident and they subsequently decided to get married in Hong Kong. The applicant then returned to Nigeria to inform his family thereof, and on 22 April 2011 he travelled to Hong Kong and solemnized his marriage with his wife on 13 May 2011.

4.However, on 15 December 2011 he was arrested by police for trafficking in a dangerous drug, and for which he was convicted on 20 August 2012 and sentenced to 11 years’ imprisonment. On 17 July 2013 his appeal against conviction and sentence was allowed by the Court of Appeal and a retrial was ordered, for which he was again convicted and was sentenced on 9 February 2015 to imprisonment for seven years and four months.

5.Whilst in prison the applicant was told by his brother Francis in 2014 that their father had been kidnapped by unknown men in Nigeria and was released only after a ransom was paid, of which the applicant suspected that either the MASSOB or the Nigerian security agents were responsible as they were known to have kidnapped people for money, and became concerned that he may suffer the same fate upon his return to Nigeria.

6.In 2015 again whilst in prison he was informed by Francis that another brother Kelechi had been arrested by Nigerian police for participating in a demonstration organized by MASSOB which turned out to be violent during which many participants were killed, and during their investigation the police discovered the transfer of a sum of money from the applicant to Kelechi in the past that was suspected to be a donation made to MASSOB, hence the applicant also became concerned that he would be persecuted by the authorities if refouled to Nigeria for being a donor or supporter of MASSOB.

7.Upon completing his sentence in 2016, a deportation order was issued against the applicant on 2 November 2016, and after he was transferred to the Immigration Department for detention pending deportation, he lodged his non-refoulement claim on 10 November 2016 with the Department on the basis of fear of risks of harm from the Nigerian authorities of being prosecuted again for his drug offence and face inhumane and degrading conditions in Nigerian prisons, as well as risks of harm from those various terrorists groups or organizations, for which he later completed a Non-refoulement Claim Form on 6 January 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.By a Notice of Decision dated 17 February 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”).

9.In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed level of the risk of harm to the applicant upon his return to Nigeria as low, that his challenge on the double jeopardy ground failed according to the Court of Final Appeal’s judgment in the case of Ubamaka Edward Wilson v Secretary for Security & Director of Immigration (2012) 15 HKCFAR 743, FACV 15/2011 in that section 11 of HKBOR excludes reliance on Article 11(6) and that fresh prosecution abroad are not covered, that reliable Country of Origin Information (“COI”) show that the Nigerian government has brought improvements to prison conditions in Nigeria, that there is no direct evidence other than the applicant’s own speculation that he would be subjected to any risk of harm from those various groups and organizations for being a homosexual or a Christian, that state or police protection would be available to him if resorted to, and that COI also 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 that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other part of Nigeria away from his home district in large cities such as Lagos where it would be difficult if not impossible for his perceived enemies to locate him.

10.On 13 March 2017 the applicant filed his appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 17 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 Director’s decision.

11.In its decision the Board found the facts of the applicant’s claim regarding the double jeopardy issue fell far short of meeting both the substantial risk and minimum level of severity requirements, that his evidence regarding his fear of harm for being a homosexual was not plausible, frank or internally consistent and that such claim was calculated and tailored to strengthen his non-refoulement claim, that he has failed to show any genuine or substantial risk of harm that the police will persecute him for his alleged connection with MASSOB, and that his fear of risk of persecution from Boko Haram for being a Christian is only general risk at the same level as any other Christian in Nigeria and hence not sufficient to justify protection from refoulement, and that in any event state protection and reasonable internal relocation alternatives would be available to the applicant that his non-refoulement claim therefore failed on all applicable grounds.

12.On 29 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward his grounds for the intended challenge which can be summarized as follows:

(1) that the Board made legal error in its decision in relying on the judgment of Ubamaka to find that his claim was solely based on his fear of being refouled to Nigeria on the double jeopardy issue when in fact there was also his fear of being persecuted by the Nigerian authorities for his affiliation with the MASSOB group for which he would be charged with treason in Nigeria;

(2) that the Board improperly used and relied on irrelevant COI provided by or sourced from UK and EU to assess the condition of prisons in Nigeria that the applicant may face in his CIDTP claim; and

(3) that the Board interpreted COI too narrowing in assessing his claim of fear of being detained in the military detention facilities for his affiliation with MASSOB where all his human rights will be deprived.

13.The applicant’s complaint in Ground (1) that the Board failed to consider his fear of persecution by the Nigerian authorities for his affiliation with the MASSOB group is clearly factually incorrect, as the Board did at the commencement of its decision clearly and properly identified in paragraph 5 all the risk and issues raised in the applicant’s claim including the said risk of harm from the Nigerian authorities:

“ 5. The Appellant has alleged that if refouled, he will be at risk of harm because of various reasons. For ease of analysis, the Board has made the list below:

(a) He is at risk of ‘Double Jeopardy’ if refouled, as he will face another prosecution in Nigeria even though he was sentenced in Hong Kong to prison for drug trafficking;

(b) He is at risk of harm if refouled, as he is now a homosexual;

(c) He will be at risk due to the extremely poor prison conditions in Nigeria;

(d) He will be at risk of religious persecution from Boko Haram as he is now a Christian;

(e) He will be at risk of harm from the Nigerian authorities who perceive him to be a donor or supporter of Massob (the organization fighting for an independent Biafra);

(f) Sending him back to Nigeria will be unfair and harsh because he is at present studying for a university degree with the Open U of Hong Kong; and

(g) Sending him back to Nigeria will be unfair and harsh because he is suffering from a back injury, which may require surgery.”

14.For such risk of harm from the Nigerian authorities, the Board proceeded to conduct its analysis and assessment under the topic “The risk of harm from the authorities who perceive him to be a donor and/or supporter of Massob”, in which the adjudicator stated her analysis and findings as follows:

“ 34. From reliable Country of Origin Information (‘COI’), the Board is aware that Massob was founded in 1999, and stands for the Movement for the Actualization of the Sovereign State of Biafra (hence MASSOB); and that Massob seeks to create an independent state of Biadra in the Igbo-dominated south-eastern region of Nigeria. Massob has claimed that successive governments have continued to oppress and discriminate against the Igbo people since the failed Biafran independence was (1967 – 1970). Headed by its founder Chief Ralph Uwazuruike, Massob staged a non-violent campaign leading to a United Nations supervised referendum for the creation of a separate Igbo state in Nigeria. Massob has continually alleged that there have been mass arrests and killings of its members by government forces. It was reported on 14 September 2015 in the Nigerian media that 43 persons suspected to be members of Massob were arrested by the State Joint Security Operations and paraded at the Headquarters of Anambra State Police Command in Awka. It was also reported that on 4 June 2017, the 82^nd Division of the Nigerian Army escaped a trap set by the Biafra groups and Massob.

35. It was noted that in the Non-refoulement Claim Form, in answer to the question ‘What is your ethnic group, tribe or race?’ the Appellant’s answer was ‘Igbo’; subsequent to the Director’s Notice of Decision dated 17 February 2017, in his Notice of Appeal he claimed that he was ‘ethnic Biafran’. The Appellant claims to be studying for a university degree with the Open University of Hong Kong. The Appellant must have been able to comprehend a simple question of ethnicity. The Appellant could not have made a mistake by claiming that he was ethnic Igbo on one occasion; and claiming that he was ethnic Belfran on another occasion. This inconsistency relates to ethnicity, and is not in relation to a minor or peripheral matter especially as he claimed to fear harm from Nigerian state security agents for being a Massob donor or supporter. Furthermore, a university student would know that the Igbos wanted to carve out an area to become a new country called Biafra, therefore Biafra relates to nationality, not ethnicity.

36. It was also noted that the Appellant had also failed or neglected to inform the Immigration Officer: (i) his name was on the Massob Register; and (ii) he had been inducted as a member of Massob since 2007; and (iii) his father had been kidnapped by Massob. That information only surfaced in evidence placed before the Board. The Appellant must have realized that even if it is accepted that: (i) members and/or supporters of Massob are persons of interest to the Nigerian government; and (ii) the Appellant’s brother Kelechi was arrested in a Massob protest march; and (iii) the police found documentary evidence that the Appellant had sent money to Kelechi; it would be regarded as pure speculation that the Nigerian police would have concluded that the Appellant is a donor and/or supporter of Massob. The matters relating to the Massob inserted subsequent to the Notice of Decision have added force and substance to this part of his claim.

37. The Board rejects the newly added assertions. The Board finds that the Appellant has not shown (absent the newly inserted assertions) that there is a genuine and substantial risk of harm that the police will perceive him to be a donor and/or supporter of Massob simply on the basis of one telegraphic transfer of money from one brother to another.”

15.Having had the benefit of hearing the applicant’s testimony and answers to questions put to him at the hearing and on the basis of all the evidence before the Board, the adjudicator was in my judgment certainly entitled to make such findings as she did that the applicant’s asserted risk that the Nigerian authorities would perceive him to be a donor or supporter of MASSOB as purely speculative on his part, and that he failed to show that such risk as genuine or substantial. In the premises and in the absence of any error being clearly or properly identified by him, I do not find any basis or merit in this complaint of the applicant.

16.As for his complaint under Ground (2) over the Board’s improper reliance on COI as to the conditions in Nigerian prisons, as already explained in paragraphs 41 – 44 of the decision, the adjudicator did accept that the prison conditions were generally poor but not found to be systemically inhuman or life-threatening, and did not meet the high threshold of Article 3 ECHR (BOR 3), and in assessing this risk the Board did proceed to consider the individual factors in the applicant’s case including the EU COI referred to by the applicant,but as rightly pointed out by the adjudicator, the onus is on the applicant to show that he will be detained and will experience conditions that will be in breach of BOR 3. In the absence of other COI to the contrary, and with rigorous examination and anxious scrutiny, I do not find any error in the Board’s findings or evaluation of this risk, and I do not see how this ground can reasonably be argued by the applicant.

17.As for the applicant’s complaint under Ground (3) that the Board failed to consider the relevant COI as to the risk of him being held in military detention facility due to his association with MASSOB where he would be deprived of all basic rights and for indeterminate period, this is a new ground or argument never raised either before the Director or the Board and for which leave has not been sought from the Court, and in the absence of any particulars or evidence from the applicant or from COI that this will indeed happen if he is to be prosecuted by the Nigerian authorities, of which the Board as noted above already found as speculative and rejected in its decision in which the applicant failed to show any error of law or procedural unfairness or irrationality, I again do not see how this ground can reasonably be argued by the applicant in his intended application.

18.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 or procedural unfairness or irrationality in the decisions being clearly and properly 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.

19.In the present case the applicant has failed to show any error of law or procedural unfairness in the process before the Board or in its decision, 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 them either, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

20.In the premises and 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 2^nd day of October 2019.

(NG Ka-wing)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 2^nd October 2019 Agara Isaiah Bishop Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 2^nd October 2019 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 6543/17/3/198/NI127 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3236/16 (Formerly RBCZ 217/16) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)