Oti Gozec v. Torture Claims Appeal Board

HCAL 1317/2018

[2021] HKCFI 1223

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1317 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 61-year-old national of Nigeria who arrived in Hong Kong on 18 May 2015 with permission to remain as a visitor up to 1 June 2015 when he did not depart and instead overstayed in Hong Kong, and after he was arrested by police on 9 June 2015 and 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 terrorist group Boko Haram. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Ihiala, Nigeria. After leaving school he worked in various jobs, got married and raised a family of 4 children.

3.In 1989 he moved to Potiskum in Yobe State and ran a business there. In 2013 the terrorist group Boko Haram started their terrorist attacks in the north eastern parts of Nigeria including Potiskum, and one day in mid-2013 the Applicant overheard a discussion amongst some of his acquaintances whom he suspected to be members of Boko Haram planning their next attack in Potiskum, of which he reported the matter to the police and as a result those members were arrested.

4.Thereafter the Applicant started to receive threats from some of the local people that Boko Haram would take their revenge against him, and as a result he left Potiskum to return to Ihiala, but later when he heard that men from Boko Haram were looking for him everywhere, he felt it was no longer safe to remain in Nigeria, and so on 17 May 2015 he departed for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 27 April 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.By a Notice of Decision dated 20 June 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”).

6.In his decision the Director took into account of 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 by members of Boko Haram upon his return to Nigeria due to the absence of any past ill-treatment from them, that there is no evidence of any threats from them other than the Applicant’s bare assertions, that in any event it is doubtful that Boko Haram still have any adverse interest in him after all these years, that the group is considered as terrorists by the Nigerian government which has taken military actions against them that state or police protection would be 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 working experience to move to other part of away from his home district or the northeastern part of Nigeria where Boko Haram are active that it would be difficult if not impossible for them to locate him.

7.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 7 June 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 3 July 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found the Applicant’s evidence as to the threats from Boko Haram inconsistent and unreliable based largely on speculation and hearsay, that in any event with the Nigerian government treating Boko Haram as a terrorist group and has launched military actions against them with American aids that state/police protection would be available to the Applicant upon his return to Nigeria if needed as well as reasonable internal relocation for him to move safely to other areas away from his home district or the north eastern part where Boko Haram are active without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.    

9.On 9 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 of fear of being killed by the Boko Haram in his home country and that the Board did not look into his case properly 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.

10.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.

11.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 the Applicant’s 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.     

12.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.

13.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 4^th day of May 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