Ozoemenam Desmond v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 219/2018

[2020] HKCFI 1149

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 219 OF 2018

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by The Honourable Mrs Justice Campbell‑Moffat:

Leave to apply for judicial review be refused.

Observations for the Applicant:

Procedural history

1.The applicant entered Hong Kong on 16 February 2010, using a false Guinean passport.  He travelled between Hong Kong, Macau and China in order to extend his visa and eventually entered for the last time on 25 October 2010 and thereafter overstayed.  He was arrested on 1 August 2011 for conspiracy to defraud but did not disclose his true identity at that time.  That matter did not go to trial.  It was not until he was transferred to the Immigration Department in March 2012 and was investigated for overstaying, that he revealed his true identity.  He submitted an Article 3 CIDTP[1] claim by way of written representation on 9 March 2012 and was released upon recognisance on 10 July 2012.  That claim was treated as a non‑refoulement claim under the USM[2] on 3 March 2014, by which time he was in possession of a Nigerian passport issued by the consulate in Hong Kong.  His non-refoulement claim form (“NCF”) was submitted on 11 September 2015.

2.The applicant attended a screening interview on 16 December 2015.  The Director of Immigration (“the Director”) dismissed his claim on all grounds (not including BOR 2) by Notice of Decision (“the Decision”) on 3 February 2016 and by Notice of Further Decision (re BOR 2) on 21 June 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Gerard Paul Muttrie (“the Adjudicator”), heard his appeal on 11 October 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 1 December 2017.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 12 February 2018 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

4.The applicant is a Nigerian national.  He was born on 5 August 1978, in Amagunze Town in the state of Enugu.  He claims that he will be killed by radical Muslim youths from Boko Haram, if returned to Nigeria.  He would also be the subject of persecution by the Nigerian Government for being a Biafran, Igbo and a Christian.

5.In 1992, the applicant’s family moved to the Congo, where they lived for the next 14 years.  During this period of time, the applicant assisted his father who worked as a farm hand.  His parents separated in 2003 and his mother remained in Congo but his father returned to Nigeria in 2008 along with the applicant, who was by now 30, along with his brother.  They settled in Zaria and his father ran a small gift shop within their home.  Even though the majority of the population of Zaria was Muslim, the family were regular churchgoers and experienced no difficulties until 2009.  In that year, the applicant received a telephone call from his elder brother about an imminent attack upon the shop.  He was told that a group of 100 or so Muslims had gathered as a result of finding a torn Quran outside of the shop.  The applicant did not return home but instead sought shelter in a local church.  From there he called to see if his brother and father were safe.  The man who answered the phone told him that they were unconscious and that he would be taking them to hospital.  He asked for the location of the applicant.  Shortly afterwards, a group of about 10 Muslim men approached the church in which the applicant was hiding.  Fearing the worst, he escaped and hid in the home of one of the congregation.  He learnt the next day that his brother and father had been killed and his home burnt down.  The church in which he had hidden the previous day was also burnt down but without any harm to anyone.  The applicant did not report these incidents to the police as he was scared and believed that the local Muslims controlled the police.

6.At that point, the applicant decided to return to the Congo to find his mother and applied for a Nigerian passport.  With financial assistance from the church, he left for the Congo.  Unfortunately, the Congo was itself unstable and he was not able to locate his mother in their previous home town.  He was unable to remain in the Congo without his mother’s sponsorship and, as he believed the situation in Zaria to have got worse, he was advised to come to Hong Kong.  He used a Guinean passport because it did not require a visa.  He had also been given a business card to prove his identity under his new name and date of birth.

7.Subsequent to his entry, the applicant maintains that the Nigerian Government have been systematically attacking both Biafrans and Christians.

The non-refoulement claim

8.Under the USM, the applicant’s claim is to be assessed on all applicable grounds which are:

i.     Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”).  Under torture risk, the applicant must establish he has substantial grounds for believing he will be subjected to torture if returned to his home state.  Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal.  The standard of proof is a low one.

ii.     Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“the HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”).  Under BOR 3, the applicant must establish that he has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to his home state.  The level of such mental or physical torture etc. must reach a minimum level of severity.

iii.     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”).  Under persecution risk, the applicant must establish that he has a well-founded fear that there is a real chance that he will face persecution based upon race, religion, nationality or membership of a social group or political opinion if he is expelled and returned to his home state.

iv.     Risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”).  Under BOR 2, the applicant must establish a real risk that he will be arbitrarily deprived of his life, have a death penalty imposed upon him; or be the victim of genocide or otherwise be deprived of his rights under BOR 2.

9.It is the duty of both the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the applicant had established the factual basis of his claim. The Director and the Adjudicator must then assess the level of harm the applicant says he fears.  Each ground of claim above has a relevant level of risk.  It is for the applicant to establish that he is the subject of such risk.  Under the HKBORO, he must show substantial grounds for believing that the harm which he fears is “foreseeable, real, personal and present”.  The question is whether there is a real risk or real chance of the occurrence or recurrence of the harm which he fears.

Decision of the Adjudicator

10.This review is against the decision of the Adjudicator only.  He had before him all of the papers which were before the Director, which included a number of documents submitted by the applicant in his screening interview and which are detailed at §7 of the Director’s Decision dated 3 February 2016.  The Adjudicator arranged for an oral hearing and treated the appeal as a rehearing.  He correctly set out the law and key legal principles including the burden and standard of proof and, in particular, he referred to Chan v MIEA [1989] HCA 62 per Sir Anthony Mason CJ who said,

“If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 percent chance of persecution occurring.”

The Adjudicator contrasted that statement of principle with a summary of the principle enunciated in Horvath v Secretary of State for the Home Department [2001] 1 AC 489 as it appears in AH (Sufficiency of Protection – Sunni Extremists) Pakistan CG [2002] UKIAT 05862, which read that state protection:

“...does not require that there should be a guarantee of safety to an individual in the state. No state can hope to provide that. It requires essentially, simply that there be an effective criminal system, operative within the state, which will usually result in criminal process being taken against those who break the law and in respect of which the state does not operate on a discriminatory basis against particular groups of which an applicant for asylum forms part”.

11.The Adjudicator analysed the applicant’s claim on all applicable grounds.  He noted that Enugu State was not in fact a Muslim area of Nigeria.  In response, the applicant maintained that every Muslim in Nigeria would kill him because of the allegation over the desecration of the Quran.  As for Boko Haram, the applicant had not mentioned them in his NCF but it had been introduced before the Director by the duty lawyer and was intended to be a general reference to Boko Haram rather than a specific reference to the applicant.  As for the allegation of the death of his father and brother, the applicant had been unable to corroborate it even with newspaper reports.  The applicant had provided links to websites covering Boko Haram and the Nigerian Government’s attitude to pro‑Biafran protest, which the Adjudicator took into consideration.

12.In his Decision, the Adjudicator noted that the applicant had gained entry into Hong Kong by means of a Guinean passport and had not sort any kind of protection before his arrest in August 2011.  He considered the claim in respect of the deaths of his father and brother to be plausible despite lack of corroboration but that claim had to be set against the background of the behaviour of the applicant who had shown an inclination to add to his claim as it progressed.  Even if the report of the deaths were true, there was no evidence of a connection to Boko Haram.  In any event, the Adjudicator fairly went on to analyse the claim upon the basis that this part of the applicant’s claim was true and did not hold his illegal entry or less than timeous application against him.

13.The Adjudicator set out the issues at §65 of his Decision.  The only other question, which this court might have added, would have been whether there was a real chance that the applicant would be killed because he was a Christian and perhaps because he was an Igbo Christian Biafran?  Was this omission of consequence?  I do not believe it was.  The Adjudicator discussed the real chance of harm if the applicant were to be returned to Zaria and felt that whilst the probability was low, it could amount to a “real chance” and therefore proceeded on that basis.  He found that there would be no reason for the applicant to return to Zaria now that his family is dead and the business and home burnt down.  He found the incident to have been a local one and that it was unlikely that anyone would pursue him elsewhere.  He noted that there were areas of Nigeria which were not Muslim dominated and far from those states which have current problems with Boko Haram.  As for the issue of being pro‑Biafran, the Adjudicator accepted that there are areas of Nigeria where the Igbo people feel they are discriminated against.  But the applicant grew up in Congo and has no history of pro‑Biafran protest.  He has not been an activist.  There is no existing risk of harm which the applicant seeks to avoid.  The applicant has not been persecuted and there is no evidence in the country of origin information (“COI”) that the government is persecuting Igbos or Christian Igbos.  As such, it would be open for the applicant to re-locate to a predominantly Christian community in the central and south western states or in the south eastern states where Igbo Christian communities constitute the majority.

Leave to apply for judicial review

14.Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status.  This is an application to apply for leave to judicially review the decision of the Adjudicator.  The applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

15.The applicant submitted his grounds of review by means of a statement dated 1 December 2017.  In it, he maintains that the Decision of the Adjudicator was illogical and was without proper reference to COI in respect of the persecution of Christians.  He does not say which COI was omitted, over and above that which he had submitted to the Director and was contained within the papers before the Adjudicator.  As the Adjudicator clearly referenced up to date COI, there is no merit in this complaint.  He also complains that the Adjudicator did not consider the reasons given for his failure to apply for protection as soon as he came to Hong Kong and why he was entering under a false passport.  The Adjudicator went to some lengths to note the applicable principles and that the applicant had entered under a false passport and was not timely in his application but he did not hold this against him.  There is no merit in this claim.  He further complains that the Adjudicator found there to be only a small risk of harm if he returned to Zaria.  That is what the Adjudicator found, but he went on to consider re‑location in any event as if there was a “real chance” of harm to the applicant.  Once again, he gave the benefit of the doubt to the applicant and there is no merit in this complaint.  Thereafter, he complains that a reference to Charlie Hebdo and to the French Government is not analogous because whilst the French security services work hard to track down terrorists, the Nigerian Government do not.  This was not why a reference to the French incident was made.  The Adjudicator fairly considered the depth of feeling of some Muslims and that incidents such as these do occur.  Thereafter, he suggested that re‑location to a predominantly Christian community would address such risk, if it exists, especially as the COI suggested such communities were not being persecuted.  This ground too is without merit.  Lastly, the applicant relies upon the ever present Boko Haram.  The Adjudicator dealt with this in detail even though he found no personal link between them and the applicant.  He gave extensive reasons for why the applicant would be able to live peacefully as an Igbo Christian Biafran in Nigeria without threat from Boko Haram any different from any other Nigerian national regardless of race or creed.  This too is without merit.

Conclusion

16.I have considered the papers and grounds carefully.  I have looked in particular inter alia, into the suggestion that the applicant was or could be the subject of persecution owing to his heritage and faith.  I have not found any error of law or procedure on the part of the Adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state his case and enquired into that case appropriately.  There is no criticism of his determination, which was open to him on the facts, explained in detail and eminently fair and reasonable  

17.In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.

Dated the 9^th day of June 2020.

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