Eze Patrick Chibuike v. Director of Immigration and Another

CACV 469/2019

[2020] HKCA 367

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 469 OF 2019

(ON APPEAL FROM HCAL 861/2018)

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Before: Hon Yeung VP, Pang JA and Marlene Ng in Court

Date of Hearing: 18 May 2020

Date of Judgment: 27 May 2020

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J U D G M E N T

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Hon Marlene Ng J (giving the Judgment of the Court):

I. INTRODUCTION

1.This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) on 25 September 2019 in HCAL 861/2018 refusing leave to the applicant to apply for judicial review.

2.The appeal hearing was initially fixed for 3 March 2020.  Due to the public health considerations and the general adjournment of proceedings, the appeal hearing was adjourned to 18 May 2020. Pursuant to the directions of the Registrar of Civil Appeals given on 24 October 2019, the applicant was directed to lodge with the court 3 sets of skeleton arguments not less than 28 days before the hearing of the appeal, ie on or before 20 April 2020.  Despite the letter sent by the Court on 8 April 2020 reminding the applicant of the aforesaid directions, the applicant only lodged his written submissions on 21 April 2020.  As the delay is insignificant, we are prepared to allow the late lodging of the written submissions.

II.  BACKGROUND

3.The applicant is a national of Nigeria who arrived in Hong Kong on 2 December 2014 with permission to remain on employment visa valid up to 2 December 2015.  In May and December 2015, the applicant twice applied for change of employment, but both applications were refused.  He was required to leave Hong Kong by 10 March 2016.  But the applicant did not depart, and instead overstayed until 5 October 2016 when he surrendered to the Immigration Department.  On 26 October 2017, the applicant raised a non-refoulement claim on the basis that if he were to return to Nigeria he would be harmed or killed by supporters of the rival political party All Progressive Congress (“the APC”) for refusing to join their party and/or by the Nigerian authority for being a member of the outlawed People’s Democratic Party (“the PDP”), the Movement for the Actualization of the Sovereign State of Biafra (“the MASSOB”) and the Indigenous People of Biafra (“the IPOB”).  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2019] HKCFI 2288.  We shall not repeat the same here.

4.By a Notice of Decision dated 12 January 2018, the Director of Immigration (“the Director”) decided against the applicant’s claim.[1] The decision covered the BOR 2 risk,[2] the BOR 3 risk,[3] the torture risk,[4] and the persecution risk.[5]

5.The applicant appealed / petitioned to the Torture Claims Appeal Board (“the Board”).  After an oral hearing on 12 April 2018, the Board dismissed the appeal on 30 April 2018.[6]  The Board found that the applicant failed to adduce any credible evidence to show he was a person of adverse interest to the Nigerian government even if he had been a part-time secretary of the PDP in Enugu State,[7] and that his involvement with the MASSOB and the IPOB was very minor (namely, he was only active for 2 months in January to March 2014) even if he had been a member of the MASSOB or the IPOB and had taken part in their activities.[8]  Thus, the Board rejected the applicant’s claim that he was unwilling to return to Nigeria because of well-founded fear of being persecuted for reasons of his political opinion,[9] and the Board did not accept the applicant’s political activity had placed him at risk of harm.[10]

6.The Board also found there was no or no reliable evidence that any public official or person able to wield the authority of the government and/or state had any connection with the alleged persecution of the applicant, that the Nigerian government and/or the state / other authorities in Nigeria had acquiesced in the alleged ill-treatment of the applicant, that the applicant had suffered physical and/or mental suffering of the requisite severity, that the alleged perpetrators ill-treated the applicant with an intention to “torture”, that the state or government of Nigeria was unwilling or unable to afford protection to the applicant, and that the state or government of Nigeria was unwilling to help the applicant for a Convention reason.[11] The Board took the view that it was unnecessary to consider internal relocation as such issue would only arise if the applicant had established a real risk of persecution in his home area, which he had not, as he did not refute that a politician belonging to the PDP had been elected to the House of Representatives in his constituency of Nkanu East.[12]  The Board concluded that the applicant’s non-refoulement claim failed on all applicable grounds.

III.  THE JUDGE’s DECISION

7.On 17 May 2018, the applicant filed his Form 86 to apply for leave for judicial review in respect of the decisions of the Director and the Board.

8.The applicant’s Form 86 gave the following grounds for his intended challenge against the Director’s decision:

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

(2)  The Director failed to recognise that the applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies as well as senior politicians such that the applicant’s misfortune was the direct result of police misconduct.

(3)  The Director failed to recognise that the state would be rendered liable to the applicant due to failure of the state and its public officials to provide reasonable protection for the citizens under the duty of due diligence.

(4)  The Director failed to take into account or to give sufficient weight to such argument before reaching his decision.

(5)  The Director failed to consider or give sufficient weight to relevant COI[13] that supported the applicant’s claim that the police in Nigeria would not be able to protect the citizens.

(6)  The Director had shown an unfair attitude in referring to COI that suited his pre-conceived conclusion, which would render his decision void.

(7)  The Director failed to recognise that corruption and incompetency of administration were still very serious problems in Nigeria, and that human rights reports were testament that would support the applicant’s case.

(8)  The Director failed to attain the high standard of fairness required under the Wednesbury test in arriving at his decision.

9.But as held in Re Moshsin Ali,[14] the Board’s decision had overtaken the Director’s decision, so the court would only focus on the Board’s decision in the application for judicial review.  The applicant’s Form 86 gave the following ground for judicial review against the Board’s decision:

“The [Board] failed to make sufficient [enquiry] before finalizing the determination. The [Board] stated that the applicant has failed to advice any credible evidence to prove material elements of his claim. It is to be noted that the applicant is a torture-claimant who has no or limited options at his disposal to bring his evidence before the tribunal, and that to when he is in custody at the Immigration Detention Centre. The [Board] has failed to give sufficient chance to the applicant to arrange relevant evidence to his non-refoulement claim as well as his appeal.”

10.The Judge heard the application on 4 June 2019, and by the CALL-1 Form dated 25 September 2019, the application was refused. The Judge, after summarising the facts and background of the case and giving due consideration to the decisions of the Director and the Board, gave the following reasons in refusing leave at [12]-[18] of the CALL-1 Form:

“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.”

IV.  THE APPEAL

11.In the Notice of Appeal filed on 3 October 2019, the applicant advanced the following grounds of appeal:

(1)  The Judge failed to give good reason in rejecting his application.

(2)  The Judge misunderstood the materials of the applicant’s case.

(3)  The Judge failed to attain the high standard of fairness in his decision.

12.In the applicant’s written submissions, he advanced the following contentions:

(1)  He was an active member of the PDP in Nigeria and a part-time secretary of the PDP’s branch office in his ward in Umunevo, District Amagumze, Emugu State, Nigeria, and he was persecuted for joining / supporting the MASSOB and the IPOB.  He would face life imprisonment and would be harmed by military forces for his support of such political parties upon his return to Nigeria.  He had criticised the sitting President and the APC leadership in Nigeria, which was a crime that carried the death penalty.

(2)  As a Christian, he would face risk of harm or even be killed due to the hatred of Muslims towards Christians.  There had been extra-judicial killing of youths in his tribe in Nigeria, which the Muslim government leadership did not stop.

(3)  The Director and the Board referred to COI that was misleading and that did not reflect the true picture of Nigeria, and they did not pay attention to relevant COI that spoke of the sufferings of the Igbo and Biafra people.  There had been indiscriminate killings and suicide bombings by terrorists that targeted Christian churches, markets and schools.  The Director and the Board were wrong to conclude he was not a target of attack in his country, especially if he were to visit a church.

(4)  The Director and the Board failed to fully consider the situation of Nigeria, and were wrong in their findings that there would be reasonable state protection and low risk of harm upon his return.

(5)  The fact he was in prison did not give him time to gather documentary support / evidence, so the Director and the Board made their assessments in unfair manner which led to unjust results.

(6)  He was a genuine asylum seeker, and urged the court to reconsider his case and to allow him to stay in Hong Kong.

13.We heard the appeal on 18 May 2020.

V.  LEGAL PRINCIPLES

14.Before we address the merits of this appeal, we would highlight the general propositions that this Court has adopted in determining an appeal for non-refoulement cases:

(1)  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision-makers are the Director and the Board.  Though in non-refoulement cases the court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse such decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  It follows from the above that in an appeal, the scope for admission for fresh evidence and for new arguments to be run is limited.  In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirements of Ladd v Marshall.[15] In respect of new argument, this Court will not generally entertain new arguments which are fact-and- evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.[16]

(4)  Further, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition.

(5)  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant can flagrantly disregard the stringent time limit in Order 53 rule 4(1) of the Rules of the High Court Cap 4A.

VI.  DISCUSSION

15.We will firstly deal with the three grounds of appeal set out in the Notice of Appeal.

16.Ground 1 is devoid of merit and without basis. The Judge had duly set out his analysis and findings in the CALL-1 Form (see paragraph 10 above), and the applicant’s complaint in this regard cannot stand.

17.Grounds 2 and 3 are vague and general assertions without particulars in support.  The applicant did not state what materials the Judge misunderstood and how his case was prejudiced as a result. In any event, having read the materials available to us, we are satisfied that the Judge had adequately set out the background of the case, and had fully and carefully reviewed the Board’s decision.  The Board had also duly set out the grounds of review as raised in Form 86 by the applicant, and its analysis and findings as detailed in paragraphs 5-6 above.  Grounds 2 and 3 are devoid of merit and must fail.

18.Regarding the complaints in the applicant’s written submissions in paragraphs 12(1) and (6) above, the Board rejected the applicant’s claim based on its findings and assessment of the risk of harm.  Such findings and assessment were within the province of the Board.  The court would not interfere with the same unless they were reversible on public law grounds.  After considering the materials before him, the Judge found no reasonably arguable basis to challenge the findings of the Board.  In this appeal, the applicant did not put forth any viable ground to reverse the Judge’s decision.  The complaints were essentially an invitation to this Court to reassess his non-refoulement claim afresh as if it were the primary decision-maker.  This is not a permissible course on appeal.

19.Regarding the complaint in the applicant’s written submissions in paragraph 12(2) above, as the Judge pointed out,[17] it was never raised or suggested in the applicant’s non-refoulement claim form and interviews,[18] when the applicant appeared before the Board[19] and/or in the grounds annexed to his Form 86[20] that he might risk harm or death upon his return to Nigeria because of his Christian faith.[21]  As there was no such evidence before the court, the Judge did not see the relevance of various news and reports on killings of Christians shown in the applicant’s documents.[22]  There is no basis for us to accept this new assertion of the applicant.

20.Regarding the complaints in the applicant’s written submissions in paragraphs 12(3)-(4) above, they were directed at the decisions of the Director and the Board.  They fail for at least four reasons.  First, as explained above, the Director’s decision was no longer susceptible to judicial review when appeal to the Board was pursued.  Secondly, the evaluation of COI was within the province of the Director.  In the absence of public law ground, the court will not intervene with such evaluation.  Thirdly, as explained in paragraph 19 above, COI in relation to attacks and killings targeting Christians and churches were not relevant.  Fourthly, these grounds had already been advanced before, and duly rejected, by the Judge.[23]  The applicant failed to pinpoint any error in the Judge’s analysis for reversing the decision of the Judge.

21.Regarding the complaints in the applicant’s written submissions in paragraph 12(5) above, we take note that in Secretary for Security v Prabakar,[24] the Court of Final Appeal highlighted that regard has to be made to the difficulties of proof faced by a claimant and the need on the part of the Director to obtain the relevant information in some instances.  This Court (differently constituted) had also emphasised that, whilst the applicant bears the burden to prove his claim, the Board and the Director should take a proactive approach in securing evidence in some circumstances.[25]

22.But the Board at [61] of its decision noted that even though the applicant by his interview in 2018 sought time to adduce “documents related to the extra-judicial killing of members of MASSOB and IPOB”, the applicant had been in Hong Kong since 2014 and was only arrested in 2017, which meant he had ample time to gather such documents.  In fact, the applicant was aware of the alleged killings of the MASSOB and the IPOB supporters in 2015 (ie when he was not under arrest), and he could have gathered documents on the topic as he wished.  Indeed, the applicant was able to submit copies of various news and reports on killings of pro-Biafra supporters by the military and authorities of Nigeria to the Judge.[26]  After having carefully considered the materials, the Judge considered the applicant had sufficient time to gather documents in support of his claim, and there was no reason why he could not have produced such documents dated 2016 or 2017 before the Director and the Board.[27]  In our view, based on the materials available before him, the Judge was fully entitled to conclude that the applicant had sufficient opportunity to gather documentary support / evidence.

23.In this appeal, the applicant did not provide any viable ground that could reverse the decision of the Judge.  Having considered the materials before us, we cannot find any such ground either.  We agree with the Judge that leave to apply for judicial review should be refused.

24.For these reasons, we dismiss the appeal accordingly.

The applicant, acting in person and present