Tochukwu Peter Obimezie v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

HCAL 1902/2018

[2020] HKCFI 3105

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1902 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge P. Li:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.The applicant came to Hong Kong as a visitor on 13/10/2008. He was allowed to stay until 3/11/2008. He overstayed until 30/7/2012 when he was arrested. He filed a torture claim on 1/8/2012. [1] He was released on recognizance on 21/9/2012. The torture claim was dismissed by the Director on 23/1/2013. The TCAB rejected his appeal on 2/4/2014.[2]

2.He filed this non-refoulement claim on 5/4/2013. The claim was assessed on the following grounds: BOR 2, BOR 3 and persecution risk.

A.     Background

3.The applicant was from Nigeria.  He was born on 25/12/1978 at Asaba. He was single. He was a Christian. His father had passed away. His mother lived in Nigeria.  He received education up to primary 4.  He was in business dealing with farming products from 1996—2007 at Lagos. He did not joint any organization.

4.His family were devoted Christians in the neighborhood of Maiduguri where 90% of the population was Muslim. They were not allowed to vote. There was discrimination against Christians in various aspects. A Muslim gangster group—Boko Haram—harassed the neighborhood. He encountered five attacks from 2006—2008. [3]

1^st attack (March 2006)[4]

5.One day in March 2006, there was a riot initiated by the Boko Haram. A group of armed Muslims attacked Christians at Maiduguri. Some Christians were killed. Some took refuge in the church.

6.The applicant was practicing choir in the church. He managed to escape through the window of that church. He hurt his left hand during the escape. He stayed at home for 2 days.The riot stopped after the government ordered a curfew.

2^nd attack (end of 2006)[5]

7.There was a road block mounted by some Muslim at Maiduguri. He heard a gunshot and hid himself in a bush. Later, he learned that some Christians were killed. He did not know the background of this incident.

3^rd attack (June 2007)[6]

8.One day at midnight in June 2007, a group of Muslims chanted slogans in Arabic on the street. He was woken up. They set fire on the houses of Christians. He and his mother escaped to a bush. He injured his ankle which was treated by traditional medicine. It took about 2 months to recover. The police were not there during the incident. He thought the attackers wanted to wipe out the Christian community in Maiduguri.

4^th attack (October 2007)[7]

9.One afternoon in October 2007, while he was playing soccer with some Christians, a group of Muslims approached. One of them carried police weapons. They said something in Arabic and fired some shots to the sky. He managed to escape home. He was not injured. He learnt later that some of his friends were kidnapped by the group and disappeared.This incident was not reported to the authorities.

5^th attack (March 2008) [8]

10.One afternoon in March 2008, while he had a meal in a restaurant, a group of Muslims rushed in and accused the owner of selling liquor. They shot the owner. He escaped through the backdoor. He was not injured.

Leaving Nigeria [9]

11.After all these encounters, he suffered mental stress. He could not sleep well and was unhappy. He did not report to the police as they would not help. He thought these attacks were acquiesced by the Nigerian authorities and the pro-Muslim president.

12.In June 2008, he went to Lagos with his mother. He stayed in that city for about 8 months. He was safe there despite there was another violent group—Odua People’s Congress.

13.Eventually, he left for Hong Kong on 13/10/2008 with his passport. He delayed application for protection in Hong Kong as he was ignorant about the scheme.

14.Christians were still attacked in Nigeria after all these years. He was worried.

15.There was widespread violence in Nigeria by Boko Haram and Muslims. Lagos and Port Harcourt were not safe for relocation. He was not confident about the police despite there were steps taken to tackle corruption. There were insufficient police officers to control the insurgency. He disagreed with the COI which indicated that there was religious freedom in Nigeria. He insisted that there was no way to resolve religious conflicts. [10]

The Decision of the Director

16.The Director rejected his claim on 16/3/2016.  The Director concluded that the risk of harm was low.  The asserted harm was not likely to materialize. The reasons were:[11]

(a)   The Muslim community and Boko Haram did not inflict harm on him in all incidents. He was not personally targeted.

(b)   He delayed the application for about 4 years after he came to Hong Kong in 2008. He only filed the torture claim in 2012 when he was arrested for overstaying. It was not accepted that it was due to ignorance of the scheme.

(c)   The Director accepted that there were improper police conduct in Nigeria. There were corruption and violations of human rights. There was insurgency by Boko Haram. On the other hand, there was on-going reforms which tackled corruption and inefficiency in the police. Human rights desks and other mechanisms [12] were set up to deal with police abuses and corruption.

(d)   The Nigerian army had step up actions against the Boko Haram and its supporters. The government had endeavored to protect its citizens. There was no evidence that the government consented or acquiesced the illegal acts of Boko Haram.

(e)   The constitution allowed religious freedom. Federal and state government had the authority to regulate religious affairs at various levels. There was no evidence that the applicant, being a Christian, was personally at risk.

(f)    The law in Nigeria permits internal movement.  Nigeria was a large and populated country. Port Harcourt and Lagos were viable alternatives for the applicant. There was less influence from the Muslim of Maiduguri and Boko Haram.  It would not be unreasonable for him to relocate there.

(g)   The documents submitted by the applicant only showed some mass attacks in Nigeria, they did not establish that the applicant had real and personal risk of being attacked by the Boko Haram.[13]

17.For BOR 3 risk, the Director concluded that the risk of injury was low and would not amount to minimum level of severity.  There was no genuine and substantial risk of ill-treatment. This claim failed.

18.For persecution risk, the risk that the applicant would be attacked was low. There was no well-founded fear of persecution, this claim failed.

19.The Director invited the applicant to file further evidence in relation to BOR 2 before 15/6/2017. The applicant did not respond. The Director went on to assess this claim based on existing information. The Director concluded, given the finding of low risk of harm, that there was no real risk of arbitrary deprivation of life. The other sub-articles were not engaged. BOR 2 claim failed.[14]

The Decision of TCAB

20.The adjudicator held a hearing on 17/4/2018.  The applicant was represented. he did not give evidence. Both parties agreed that there was no issue of credibility and accepted that the alleged incidents had occurred.

21.The adjudicator set out the background which was basically the same as summarized above. He pointed out the following important aspects in the evaluation of the applicant’s evidence:

(a)   The 2^nd and 5^th incidents were not aimed at Christians.

(b)   In the 2^nd incident, there was no evidence that the road block was set up by Muslims. He had no personal knowledge that several Christian were killed. It was hearsay.

(c)   In the 5^th incident, only the owner of the restaurant was targeted. It was 5 months after the 4^th incident.

(d)   The 1^st and 2^nd incidents were 6 months apart. Similarly, for the 2^nd and 3^rd incidents. The applicant was not seriously injured in the 3^rd incident.

(e)   In the 4^th incident, the Muslims had no intention to harm anyone. There was no evidence whatsoever that some of the Muslims were police.

(f)    It was the applicant’s speculation that the Muslims conduct was acquiesced by the pro-Muslim president.

(g)   The applicant had not consulted any doctor because of trauma of the incidents. There was no evidence that the applicant had mental suffering to the requisite degree. He did not report to the police.

(h)   Before leaving Nigeria for Hong Kong, he stayed at Lagos for about 8 months. He was safe there.

(i)     There was a delay of 3.75 years before he applied for protection. He admitted in the questionnaire that he was on a business trip to Hong Kong.[15]

22.The adjudicator found that there was no physical or mental pain and suffering to the requisite degree of severity. The applicant had not made out a case for non-refoulement protection. [16]

23.The adjudicator did consider various COI. He set out those COI which corroborated the applicant’s claim that there was police inefficiency, corruption and abuse of human rights. The adjudicator also set out other COI which indicated recent reforms. There were practical steps to combat the Boko Haram by the government. There were channels of complaints set up to tackle police conduct and corruption. There were reports which indicated religious freedom. The adjudicator concluded that there was State protection.[17]

24.The adjudicator pointed out that there was no evidence that the Boko Haram targeted the applicant. Given the large population in Nigeria, it would be difficult for Boko Haram to locate him. He concluded that Port Harcourt and Lagos were reasonable options for internal relocation.  It would not be unduly harsh for the applicant to relocate.[18]

25.Given the above, the adjudicator did not accept that the events had caused physical and mental injuries to the applicant. The adjudicator did not accept that the applicant would face any risk of serious torture or ill-treatment if returned to Nigeria.

26.For BOR 2 and 3, given the evidence, the adjudicator was not satisfied that there was substantial risk of physical or mental ill-treatment. There was no real and personal risk of arbitrary deprivation of life.  Both claims failed.[19]

27.For persecution risk, the adjudicator had considered all incidents, the COI and the viable relocation. The adjudicator concluded that the applicant was not under real and personal risk of persecution on any Convention grounds.  This claim failed.[20]

Judicial Review

28.The applicant filed the leave application for judicial review on 11/9/2018. In his affidavit, the applicant asserted that there was religion crisis and his life was in danger.

29.In a leave application, this court would consider whether there is any error of law or procedure.  Whether the decisions of the TCAB and the Director were reasonable.  This court would not interfere with the finding of facts unless it is obviously wrong.

30.The adjudicator had analyzed the evidence in detail.  He correctly pointed out the important aspects of the applicant’s story.  The adjudicator found that the applicant did not suffer physical or mental suffering.

31.In my view, his conclusion is reasonable.    There is no error of law and procedure in both decisions.

32.The applicant sent in 12 pages of documents to this court on 16/3/2020. Some of them are from Human Rights Watch[21] and others appear to be newspaper reports of unknown sources. As mentioned above, it is the duty of the TCAB to ascertain the facts at the time of the assessment. It is not for this court to do so in a leave application. In any event, those documents show that the Boko Haram insurgency was still active in Nigeria, it could not establish that the applicant was under real and personal risk of harm at the time of the assessment. Those documents could not take the leave application any further.

Conclusion

33.I refuse leave for judicial review.  This case is not reasonably arguable. There is no reasonable prospect of success.

Dated the 18^th day of December 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