Nwokeji Ifeanyi Canis v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1725/2018

[2020] HKCFI 1124

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1725 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 K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review against the decision of the Director of Immigration (“the Director”)

2.However, the Court of Appeal in Re: Moshsin Ali, [2018] HKCA 549 (CACV 54/2018) decided that the Director’s Decision is not susceptible to judicial review once an appeal to the board is pursued by a claimant [45]. The appropriate respondent should therefore be the Torture Claims Appeal Board (“the Board”)

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court (“RHC”), on this Court’s own motion, Form 86 is amended by deleting the Director and replaced by the Board.

4.The applicant was represented by counsel, Mr. Rowan Hunter.

The applicant

5.The applicant is a Nigerian national. In June 2006, he came to Hong Kong using a Ghanaian passport. On 7 February 2011, he was arrested and convicted of remaining in Hong Kong without the permission of the Director. On 23 December 2011, he lodged a Torture Claim with the Director. In the Notice of Decision dated 19 July 2013, the Director rejected his application for Torture Claim. He appealed and was rejected by the Board on 21 May 2014.

6.On 22 July 2013, he lodged his non-refoulement claim on BOR 2 risk, BOR 3 risk and Persecution risk as discussed below.

7.Below is a summary of the events as submitted by counsel for the applicant.^[1]

(1)     In short, the Applicant’s claim was that between 2001 and 2002, the Government had repossessed his father’s land and promised to re-locate the family. This promise was never kept and his parents were made homeless. His mother campaigned for compensation which attracted the baleful attention of the authorities.

(2)     In 2003 his mother was killed by a militant vigilante group called The Bakassi Boys who acted at the behest of the government. His uncle reported the murder to the local police who did nothing and his uncle was later also killed by The Bakassi Boys in a bomb blast. Death threats were made to his family, though he didn’t know who had issued them.

(3)     In April 2004, he moved to Kaduna State with his family where he was beaten by the police. In November his grandmother was killed in her home by Boko Haram. In April of the following year his brother was killed. He believed it was done by Boko Haram or a similar group the Arewa People’s Congress.

(4)     The Applicant moved to Lagos in fear for his safety but his sister went back to their hometown and was killed in May 2006. He was found in Lagos by those he believed to be the Bakassi Boys. He believed they would kill him as he was the last surviving member of his family, who could make trouble over the land confiscation. He fled to Ghana and thence to Hong Kong.

The Director’s Decision

8.As the applicant had he raised his Torture Claim before, the Director would not revisit the claim on Torture risk. The Director considered the application in relation to the following risks:

a.     Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”);

b.     risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

c.     risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

9.By Notice of Decision dated 30 June 2017, the Director rejected his claim for the reason that his claim was not substantiated.

The Board’s Decision

10.The applicant appealed to the Board against the Director’s Decision and he attended a hearing before the Adjudicator on 8 November 2017.

11.By Decision dated 15 June 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

12.The Board considered the applicant’s evidence, and came to the conclusions below.

“61. … … the Petitioner is not a witness of truth and that he has fabricated claims in relation to his and his family members’ encounters with, and his family members’ death at the hands of, the Boko Haram, the Bakassi Boys and the Nigerian government. While the Adjudicator is mindful of the fact that it is quite possible for the centerpiece of the Petitioner’s claim to stand despite the presence of some exaggeration, uncertainty or even untruthfulness, this was not the case with the Petitioner’s evidence.

99. … … The Adjudicator does not accept that his family have all been killed or targeted in the way claimed, that he is of any ongoing interest to the Bakassi Boys, the Boko Haram, the Ariwa Group, the OPC or the Nigerian government either as a result of a land dispute or otherwise. The Adjudicator does not consider that the Petitioner would be at any risk of suffering proscribed harm should he return to his home area in Nigeria in the reasonably foreseeable future for the reasons above. Nor does the Adjudicator consider that he would be targeted by the Bakassi Boys, the Boko Haram, the Ariwa Group, the OPC, any of their derivative organizations or the Nigerian government in the way claimed. While the Adjudicator accepts that there has been a recent spate of kidnappings of expatriates in southern Nigeria, the Adjudicator does not accept the Petitioner would be so targeted.

100. The Adjudicator has considered the Petitioner’s claims both individually and cumulatively, and in light of its findings above, the Adjudicator does not consider that the Petitioner is at risk of suffering proscribed harm should he return to Nigeria in the reasonably foreseeable future. Based on the evidence as a whole, the Adjudicator finds for the reasons that follow that the Petitioner’s case for non-refoulement has not been made out.”

13.The Board had taken into consideration of the issues below before it came to the conclusions above.

a.     His evidence was generally evasive and substantially inconsistent both with his earlier claims and with country information [57].

b.     There were examples in support of (1) above, such as that he said that his father had not taken any step to reclaim the land, but subsequently said that his father had organized a meeting with other men [58]; that he had produced little supporting documentation and his claims relied almost entirely on hearsay evidence [59]; he was unable to confirm whether he was attacked or injured by the Bakassi Boys or any other group [63]; his inconsistent recollections regarding his claimed kidnapping and beating [64 & 65]; his inconsistent evidence relating to whether he was threatened by anyone while living in Nigeria [66]; his evidence on the identity of the persons who killed his brother changed over the course of the hearing, referring to Ariwa Group and the Boko Haram being the same group [68 & 69]; he assumed the Bakassi Boys had killed his sister whereas he was only told by someone else [70]; he made speculation as to who killed his grandmother and his brother [71].

14.The Board has also taken on board the applicant’s Christian claim and concluded that he did not face such a real risk if he returned to Nigeria [83 & 85]. Also, the Board had considered the issues associated with his wife’s health. Relying upon the Court of Appeal’s decision in Comilang & Ors v Director of Immigration at [15], the Board concluded that the provisions of the Basic Law and the Hong Kong Bill of Rights could not be invoked to enable him not having the right to enter and remain in Hong Kong to resist removal or deportation [94].

Application for leave to apply for judicial review

15.In the application for leave to apply for judicial review of the Board’s Decision, counsel put forth the arguments below.

1.     The Adjudicator had applied the burden of proof on one of “beyond reasonable doubt” instead of “on the balance of probabilities”, which is wrong and inconsistent with the guiding principles in Nalliah Karanakaran v Secretary of State for the Home Department [2000] Imm AR 271, which the Adjudicator said he would adopt in the Board’s Decision. Examples: the Adjudicator had taken an excessively technical or trivial approach in disbelieving the applicant when he said that he was told who killed his sister was the same thing as he assumed it^[2]; the Adjudicator’s insistence, at various points in the determination that because the applicant did not actually witness the murder of family members, he couldn’t be sure who had done it^[3].

2.     The Board did not rely upon updated Country of Origin Information (“COI”). It held that the Bakassi Boys were no longer a threat and were effectively disbanded, based upon the COI. But there is COI slightly after the handing down of the determination which shows that the Bakassi Boys are still a threat.^[4] Also, COI also showed that Boko Haram operated outside the North East of the country. Therefore, the Board should not hold that it was inherently improbable that the applicant’s grandmother was killed by Boko Haram and that the applicant would be in danger.^[5]

3.     The applicant’s religious affiliation, i.e. he is a Christian should be given consideration as well.

DISCUSSION

16.I shall highlight the relevant legal principles for the discussion below.

17.The burden of proof is on the applicant throughout the proceedings even under the high standards of fairness as held by the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187:

“High standards of fairness requires the Secretary (Director) to give every opportunity to the applicant to establish his claim (the burden being solely on him); the claim being properly assessed by the Secretary and where the claim is rejected, the Secretary must give reasons sufficient for the applicant to consider taking up judicial review [51].”

18.The Court of Appeal in TK v Jenkins & Another [2013] 1 HKC 526, C.A. held that the standard of proof applies to two issues:

“The standard of proof applies to two issues. One is the proof of the risk of torture, that is, the likelihood or probability of the torture claimant being subjected to torture if he were to be expelled, returned or extradited to a particular country. The “standard of proof” required is “more than a mere possibility” but not needing to be “highly likely”. [28] The other issue is the finding of the primary fact in deciding whether there are “substantial grounds for believing” that the torture claimant would be in danger of being subjected to torture in the state in question. The burden lay with the applicant to convince the Director and the adjudicator that what he said was true (subject to the high standards of fairness described above). So far as the standard of proof in relation to the primary facts is concerned, one applies the civil standard, that is, the balance of probabilities: Rasaratnam v Canada (Minister of Employment and Immigration) [1992] 1 FC 706; Thirunavukkarasu v Canada (Minister of Employment and Immigration) [1994] 1 FC 589. [31]”

19.The Court of Final Appeal in Ubamaka Edward Wilson v Secretary for Security & Another (2012) 15 HKCFAR 743 set out the guidelines for the assessment of the applicant’s case:

“175. The Court should assess the risk at the time of the proceedings, taking account of information that has come to light after the deportation decision was taken in order to ensure that the Court is able to make a “full and up-to-date assessment” of the current situation.”

20.In Bah Mohamed Bachir v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and Director of Immigration [2019] HKCA 462, 18 April 2019, the Court of Appeal held:

“15.     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 scrutinizing 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 Country of Origin Information (“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.”

21.The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42], subject to judicial review of the Court.

22.With the above legal principles, I shall now consider counsel’s submissions in order to determine “whether the applicant could show that he had a reasonable prospect of success in his intended judicial review.” Peter Po Fun Chan (2007) 10 HKCFAR 676 §14.

23.Ground (1) can be disposed of by considering whether the Adjudicator had required the applicant to prove his case on the basis of “beyond reasonable doubt”, which is inconsistent with the Court of Appeal’s decision in TK’s case. Counsel does not challenge the principles in Nalliah Karanakaran v Secretary of State for the Home Department [2000] Imm AR 271. He only complained that the Adjudicator did not apply the principles when he assessed the applicant’s allegations of the facts of his case. In my view, the way the Adjudicator assessed the facts does not show that he had required the applicant to prove his case beyond reasonable doubt. He had given his reasons for not believing the applicant’s evidence on the issue as to who had murdered the applicant’s sister. He did not accept the applicant’s view that somebody told him was equivalent to what he assumed. The question is if the Adjudicator adopted the standard of proof on the basis of “on the balance of probabilities”, does it mean that he had to believe the applicant’s evidence under those circumstances? It is trite law that in civil litigation, the court is not obliged to give weight, let alone full weight, on hearsay evidence. This analysis applies to the evidence as to who had murdered other members of his family.

24.Even if I accept counsel’s criticism that the Adjudicator had adopted an excessively technical or trivial approach, which I disagree, I have to consider those pieces of evidence as to who the murderers were, were only a small part of the evidence. The Adjudicator has considered the Petitioner’s claims both individually and cumulatively and he had come to his conclusion as to the facts of the applicant’s case. He was entitled to do so. This ground fails.

25.Ground (2) fails in light of the findings of the Court of Final Appeal in Ubamaka’s case. The Board was only obligated to consider all the COI before it at the time of hearing. The Board should not be complained for not considering information after the hearing. The applicant has the burden of raising the information for the Board’s consideration at the hearing. According to the Court of Appeal in Bah Mohamed Bachir’s case, this Court should not intervene on this ground.

26.Ground (3) fails for the reason that the Board had taken on board the issue of the applicant’s religious belief and it came to its conclusion. See paragraph 14 above.

27.The applicant fails to show that he has any reasonable chance of success in his proposed judicial review.

CONCLUSION

28.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the judicial review. Accordingly, I dismiss his application.

Dated the 12^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

[1] §§2-5 of written submissions

[2] Paragraphs 14 & 20 of written submissions

[3] Ibid

[4] Paragraph 16 of the written submissions

[5] Paragraphs 16-18 of the written submissions