Ezedianyinma Patrick Obinna v. Torture Claims Appeal Board

HCAL 297/2018

[2020] HKCFI 468

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 297 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 39-year-old national of Nigeria who last arrived in Hong Kong on 5 July 2012 with permission to remain as a visitor for business purpose up to 2 August 2012 when he did not depart and instead overstayed and was arrested by police on 11 December 2012.  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 Islamic terrorist group Boko Haram for being a Christian.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Lagos City, Lagos State, Nigeria to a Christian family and that he also became a Christian.

3.After leaving school he first worked as a teacher, and later in his uncle’s investment business in Ibadan City, Oyo State as a purchasing manager.

4.In around 2010 he was once attacked by some men with knives whom he suspected to be members of Boko Haram after he refused to join their group but he managed to escape from the scene to receive medical treatments for his injuries in his head and waist.

5.On another occasion in about 2011, the church in which he attended was attacked and burnt down by Boko Haram but he again managed to escape from the fire with a leg injury.

6.In 2012 after he was warned by his pastor of death threats made by Boko Haram against Christians in the local area and that some of the church members had already been killed by them, he decided that it was no longer safe to remain in Nigeria, and so in July 2012 he departed for Hong Kong, and after his arrest for overstaying he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 22 March 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.By a Notice of Decision dated 10 May 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then 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 Article33 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 assessed the level of risk of harm from Boko Haram to the Applicantupon his return to Nigeria as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence that he had been specifically targeted by the terrorist group, that the Nigerian military had launched successful military actions against them that their threats had been reduced over the years that state or police protection wouldbe 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 923,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with work experience to move to or remain in the southern part of Nigeria such as Oyo or Lagos away from the stronghold of Boko Haram in the northeast region to avoid the risk of their attacks.

9.By a Notice of Further Decision dated 13 July 2017 the Director again rejected the Applicant’s claim upon receiving and considering further submissions from the Applicant 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”).

10.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 23 May 2016, and for which he attended an oral hearing on 21 September 2017before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 24 November 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.In its decision the Board found even on the Applicant’s own case that he had never been targeted by Boko Haram whilst in Nigeria, and that according to reliable COI that the southern part of Nigeria is dominated by Christians that it would be safe for the Applicant tolive there so that the risk of being attacked by Boko Haram or other Islamic military groupscan be avoided that his claim for non-refoulement protection failed on all applicable grounds.

12.On 26 February 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affidavit of the same date he merely repeated his claim that his life would still be in danger due to religious crisis in his home country.

13.The Applicant was then two days late with his application, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

14.Given that the Applicant was by then no longer legally represented and that a delay of two days on any view cannot be regarded as significant, I am prepared to extend time for his late application, and instead to focus on the merits of his intended challenge, which is however, as noted above, not supported by any grounds put forward by him, let alone ones which may be reasonably arguable to show any realistic prospect of success in his intended application.

15.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when 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 Nupur Mst v Director of Immigration [2018] HKCA 524.

16.In the Applicant’s case, the sole basis of his claim and on his own case is that he feared the risk of being harmed by Boko Haram as a Christian should he return to Nigeria,but in the absence of any reliable evidence that he has somehow been specifically targeted by that terrorist group, and as the Court of Appeal has held, the mere existence of a consistent pattern of gross, flagrant or mass violation of human rights or, as in the present case, of random terrorist attacks in the home country per se does not constitute a sufficient ground for determining that a particular person will be in danger of being subjected to such risk upon his return: see Re RS CACV 206/2012, 20 August 2013, para 59; and Re Fitri Ambarwati & anor [2018] HKCA 461, CACV 110/2018. On this basis the Board was in my view entitled to reject the Applicant’s claim, and in the absence of any error of law or procedural unfairness being shown by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

17.Furthermore, the fact is that it has been established by both the Director and the Board in their decisions that the risk of harm in the Applicant’s claim from Boko Haram is confined mainly to the northeast region of Nigeria and that it is not unreasonable or unsafe for him to relocate to the southern part of Nigeria such as Oyo or Lagos away from such risk of attacks by Boko Haram, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

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 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