Mmaduabuchi Augustin Chukwuma v. Torture Claims Appeal Board

HCAL 952/2018

[2020] HKCFI 2280

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 952 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 31-year-old national of Nigeria who arrived in Hong Kong on 20 March 2014 with permission to remain as a visitor up to 27 March 2014 when he did not depart and instead overstayed, and on 8 April 2016 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Nigeria he would be harmed or killed by his paternal uncle over a land dispute in his home village.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Akaibite, Nsukka, Nigeria.  After leaving school he traded in computers and mobile phones in Lagos.

3.His father owned some land in their home village, but as his father was getting old, his paternal uncle in 2013 started to covet his father’s land by attempting to snatch the land away for himself by coming onto the land with his workers to work and farm without his father’s permission.

4.On morning in December 2013 his uncle again with his workers came onto his father’s land to work, and when the Applicant tried to stop them, his uncle threatened that he would deal with him later and left with his workers.

5.Several days later one night some unknown men came to the Applicant’s home threatening to kill him, and when the Applicant tried to escape, they shot him in his left leg with an arrow, but he managed to flee from the scene to the local clinic for medical treatment.

6.Upon his recovery from his injury the Applicant reported the matter to the police, but the police found no evidence to connect those unknown men to his uncle and refused to take any further action.  Fearing further attacks from his uncle, the Applicant therefore departed Nigeria in March 2014 for Hong Kong where he overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 9 December 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.By a Notice of Decision dated 27 February 2017 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 his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his uncle upon his return to Nigeria as low due to the low intensity and frequency of past ill-treatment from him, that his problems with his uncle were private family disputes without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information show that reasonable internal relocation alternatives are available in Nigeria with a large population of 186 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 working experience to move to other part of Nigeria away from his home district in large cities such as Lagos where he had stayed before and where it would be difficult if not impossible for his uncle to locate him.

9.On 6 March 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 14 February 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 19 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board did not take issue with the Applicant’s claim of threats arose from his disputes with his uncle over his father’s land, but found that it was a private family dispute without official involvement that state/police protection would be available as well as reasonable internal relocation within Nigeria for the Applicant to move safely to other area away from his home district without any risk of being located by his uncle that his claim for non-refoulement protection failed on all applicable grounds.

11.On 28 May 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 attached copies of the decision and other documents earlier submitted relevant to his claim but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.  As such and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

12.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 the 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.

13.In the Applicant’s case, 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 his 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.     

14.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.

15.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 15^th day of  September 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