Unachukwu Chidi Isaac v. Director of Immigration and Another

HCAL 138/2018

[2019] HKCFI 1044

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 138 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 50-year-old national of Nigeria who last arrived in Hong Kong on 20 February 2012 with permission to remain as a visitor up to 5 March 2012 when he did not depart and instead overstayed until 3 May 2013 when he was arrested by police.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Nigeria he would be harmed or killed by 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 and raised in Oko, Anambra State, Nigeria as a Christian.  After leaving school he ran a business selling used motor vehicle tires and auto parts, and got married with children.

3.In 1996 the applicant entered into a partnership business and formed a company for his business based in Jos but also with a branch in Onitsha.  He therefore moved his family to Jos where he continued to practice his Christian faith and regularly attended his church.

4.In 2011 the jihadist terrorist organization Boko Haram based in northeastern Nigeria which advocated to purify Islam started to spread its violence to the southern part of the country, and one day in August 2011 the applicant was intercepted in his village in Jos by some supporters of Boko Haram who warned him to stop spreading the Christian faith in the village as Boko Haram would soon come and kill him.

5.Shortly thereafter one evening after the applicant and his family had attended the church in the village and were on their way home, they heard a bomb exploded inside the church followed by some gun shots, and saw masked men shooting their rifles everywhere whom he suspected to be members of Boko Haram, and so he and his family fled into woods and hid there until those masked men had left that they came out and went home.

6.On 19 February 2012 the applicant came to Hong Kong to purchase goods for his business, but on 29 February 2012 he received a telephone call from his sister in Onitsha that Boko Haram had launched an attack in his village in Jos and killed many of the villagers including his wife and children and also burnt down his house because they knew he was a Christian living there.

7.Fearing for his own safety the applicant was afraid to return to Nigeria and therefore overstayed in Hong Kong, and after his arrest by the police he raised his non-refoulement claim for protection for which he later completed a Non-refoulement Claim Form (“NCF”)on 7 April 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.By a Notice of Decision dated 8 September 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 from Boko Haram to the applicant upon his return to Nigeria as low due to the absence of past ill-treatment from them, that there is no reliable evidence that he had been targeted by Boko Haram other than some hearsay information, that Boko Haram has been outlawed by the Nigerian government which has launched successful military actions against them 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 181 million people spread across a vast territory of more than 911,000 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 the Boko Haram members to locate him.

10.By a Notice of Further Decision dated 5 September 2017 the Director again rejected the applicant’s claim after receiving and considering further submissions from him 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, the notice of which was filed on 20 September 2016, and for which he attended an oral hearing on 12 October 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 15 December 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.In its decision the Board found a number of key aspects of the applicant’s claims confused, vague and inconsistent that were far from convincing with serious doubts over the credibility of his claims, that there is no independent evidence that he had been targeted by Boko Haram, and that in any event reliable COI show that the Nigerian military has successfully eliminated the presence of Boko Haram and its operations from most parts of the country with no reported Boko Haram activities in Plateau state or other Middle Belt states over the past several years that it would be safe for the applicant as an able-bodied adult with work experience to return to live in Onitsha or other large towns or cities such as Lagos in the south or east of Nigeria without fear of any risk of religious persecutions.

13.On 30 January 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 grounds for seeking relief was given either in his Form or his supporting affirmation of the same date in which he merely exhibited copies of those decisions and his NCF.  In the absence of any arguable ground put forth by the applicant or any particulars of error in the decisions shown by him, I am unable to see any merits or prospect of success in his intended challenge.

14.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 in their 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 Re Litoun Mounsy [2018] HKCA 537.

15.In the applicant’s case, the Board rejected his claim essentially on its adverse finding that he had been targeted by Boko Harm for harm for the thorough and detailed analysis and reasoning set out in §§38 – 61 of its decision after having had the benefit of hearing him in evidence and answers to questions raised in respect of his claims, and in the absence of any legal error or procedural unfairness being identified by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

16.Furthermore, the fact is 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 a localized one 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.

17.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.

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 8^th day of October 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