Egbuonu Chidozie Boniface v. Torture Claims Appeal Board

HCAL 1978/2018

[2021] HKCFI 2279

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1978 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 48-year-old national of Nigeria who arrived in Hong Kong on 20 January 2015 with permission to remain as a visitor up to 3 February 2015 when he did not depart and instead overstayed, and on 6 November 2015 he surrendered to the Immigration Department, and when a removal order was made against him, he then 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 and/or by the political party Labour Party (“LP”) for refusing to join their party and/or the terrorist group Boko Harem. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised as a Christian in Chi Obliopia Ekwusigo GRA, Anambra State, Nigeria where his father owned a piece of land inherited from his grandfather but which had caused constant conflicts with his uncle who often disputed his father’s entitlement to the land.

3.After leaving school the Applicant went to neighboring town Nnewi to work in a motor spare parts company until 2010 when he returned to his home district after his father was found shot dead on his land, of which he suspected that it was his uncle who did that over their land dispute, but the police were unable to find any evidence against his uncle.

4.Upon his father’s passing, the Applicant being the eldest son inherited the land, and his uncle then turned his hostility towards him by demanding that he gave up the land to him, and when he refused, his uncle would send his men to threaten him and his family, while around the same time some local LP supporters had come to him to invite him to join their party, and when he refused, they also threatened him with violence, and had on two occasions assaulted him with wooden sticks that he had to seek medical treatments in the hospital.

5.One day in 2012 while the Applicant was together with his family members and friends attending an occasion when some unknown men shot at them with guns that and killed his brother and two friends, of which the Applicant suspected that those men were sent by his uncle to kill him, and so he fled to Bayelsa State, and from there he later departed Nigeria on 20 January 2015 for Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 14 January 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.By a Notice of Decision dated 5 April 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 of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his uncle or those LP supporters upon his return to Nigeria as low due to the low intensity and frequency of past ill-treatment from them, that his problem with his uncle was a private land dispute without any official involvement that state or police protection would be available to the Applicant if resorted to, while those local LP supporters had no reason to specifically target him for recruitment and would not have any adverse interest in him after all these years, that there is simply no evidence of any threats or persecution against him as a Christian from the terrorist group Boko Harem in the past prior to his departure from Nigeria, 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 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 it would be difficult if not impossible for him to be located by any of his perceived enemies.

8.On 24 April 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 13 April 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 28 August 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 evidence as to his reasons for seeking non-refoulement protection in Hong Kong unconvincing and devoid of any credibility, that there is no reliable evidence in support his bare assertions of the killing of his father or brother by his uncle or of any threats or ill-treatments inflicted on him by any of those militant or terrorist groups which he claimed to fear, and that in any event in the absence of any official involvement that state/police protection would be available to him upon his return to Nigeria as well as reasonable internal relocation for him to move safely to other area 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 19 September 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 as before without putting forth any proper ground for his intended challenge. 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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 50 to 74 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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 to challenge the finding of the Board.  

13.Furthermore, 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 if true 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 5^th day of August 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