Nzewi Jude Ugochukwu v. Torture Claims Appeal Board

HCAL 1414/2018

[2021] HKCFI 1197

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1414 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 47-year-old national of Nigeria who last arrived in Hong Kong on 20 September 2012 with permission to remain as a visitor as extended up to 15 October 2012 when he did not depart and instead overstayed and was arrested by the police on 15 June 2013. 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 local supporters of the rival political party All Peoples Congress (“APC”) and/or by a host of terrorist groups or militants operating in Nigeria. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Onitsha, Nigeria. After leaving school he worked in the garments business in his home village, and became a supporter of the political party People’s Democratic Party (“PDP”) and regularly attended its local meetings and rallies during which he had experienced violent confrontations with the supporters of rival political parties.

3.On one occasion in late 2011 when he and his fellow PDP supporters were involved in one of such confrontations with APC supporters, he was struck by wooden sticks and suffered injuries all over his body that he was taken to the hospital for treatments.

4.After discharge from hospital the Applicant resumed his garments trading business and took various business trips to Hong Kong for purchasing stocks for his business.

5.During his last business trip to Hong Kong in September 2012, the Applicant was informed by his brother in Nigeria that situations back home were bad with a lot of violence from terrorist groups and militants such as Boko Haram, Fulani Herdsmen and Niger Delta militants operating there, and that some suspicious men had been looking for him, and advised him not to return to Nigeria, and so the Applicant overstayed in Hong Kong, and upon his subsequent arrest by the police, he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 7 February 2017 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.By a Notice of Decision dated 27 March 2017 the Director of Immigration (“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”).

7.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed upon his return to Nigeria due to the absence of or low intensity and frequency of past ill-treatment from APC supporters or any of those terrorist groups or militants, that there was no evidence that he had been targeted by the APC supporters or any of those terrorist groups nor was there any reason for them to do so against him, that in the absence of 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 (“COI”) shows 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 parts of Nigeria away from his home district in large cities such as Lagos where it would be difficult if not impossible for him to be located.

8.the Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 12 April 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 1 June 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found the Applicant’s claim vague and unsubstantiated that there is no reliable evidence for it to accept that he had been harmed as claimed or that he had suffered harassments or threats of an intensity sufficient to give rise to a fear that caused him to leave Nigeria to search for international protection, and that in any event in the absence of any evidence of state or official involvement that state protection would be available to him upon his return to Nigeria as well as reasonable internal relocation for him to move safely to other areas away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.     

10.On 18 July 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 he would be killed if returned to his home country 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 irrationality 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.

11.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.

12.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 parts 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.     

13.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.

14.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 30^th day of April 2021.

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