Okeke Stanley Chigbogu and Another v. Torture Claims Appeal Board

HCAL 2208/2018

[2021] HKCFI 2730

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2208 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 Applicants:

1.The 1^st Applicant (“A1”) is a 48-year-old national of Nigeria who arrived in Hong Kong on 23 October 2003 with permission to remain as a visitor up to 13 November 2003 when he did not depart and instead overstayed in Hong Kong, and was arrested by police almost 9 years later on 13 May 2012.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Nigeria he would be harmed or killed by other members of his family over some monetary dispute.

2.A1 was born of Igbo ethnicity and raised as a Christian in Ehume Obowa, Imo State, Nigeria where his father had 3 wives with many children and owned a piece of ancestral land in the home district.

3.After completing his university education A1 ran a vehicle spare parts business with his partner which had flourished over the years.  With the passing of his father, the family in 2003 sold the ancestral land and distributed the sale proceeds amongst all the male descendants of the family including A1, and then they invested their shares in his business.

4.On 23 October 2003 A1 took a business trip to Hong Kong to purchase motor vehicle spare parts for his business which he then sent to his partner in Nigeria, but before he was to depart Hong Kong to return to Nigeria, he received news from his family that his business partner had disappeared with all the goods and money of the business, and that some of the family members were very upset and suspected that he was involved in cheating their money and had threatened to kill him upon his return to Nigeria.

5.As a result A1 was afraid to return to Nigeria, and so he overstayed in Hong Kong during which he met and formed a relationship with an Indonesian woman who was then also a torture claimant based on her own case, and who on 28 February 2013 gave birth to their son, the 2^nd Applicant (“A2”) and for whom she also raised a torture claim based on her case which was jointly assessed with her claim but was subsequently rejected by the Director on 16 July 2013, while their appeal was also dismissed by the Torture Claims Appeal Board (“Board”) on 18 February 2014.

6.Meanwhile A1’s own torture claim was also rejected by the Director on 6 September 2013, and his appeal to the Board was dismissed on 4 June 2014.

7.By a written signification dated 22 October 2013, A1 raised a non-refoulement claim for protection under the Unified Screening Mechanism (“USM”), and on 23 November 2015 his Indonesian girlfriend authorized him to also raise a non-refoulement claim for A2 based on A1’s case before withdrawing her own non-refoulement claim and returned to Indonesia on 18 January 2016.

8.Accordingly, A1 completed a Supplementary Claim Form (“SCF”) for himself and A2 jointly on 3 March 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

9.By a Notice of Decision dated 11 August 2016 the Director of Immigration (“Director”) rejected the Applicants’ claim on the then remaining applicable grounds other than torture risk including risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

10.In his decision the Director took into account of all the relevant circumstances of the Applicants’ claim and assessed the level of risk of harm from A1’s family upon their return to Nigeria as low due to the absence of or low intensity and frequency of past ill-treatment from them, that A1’s problem with his family was a private monetary dispute without any official involvement that state or police protection would be available to the Applicants 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 A1 as an able-bodied adult with working experience to move safely with A2 to other part of Nigeria away from his home district such as Abuja where it would be difficult if not impossible for his family to locate them.

11.By a Notice of Further Decision dated 27 June 2017 the Director again rejected the Applicants’ claim in the absence of any response from them to an earlier invitation to submit additional facts which may be relevant to their non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”).

12.By then the Applicants were already in the process of appealing to the Board against the earlier decision of the Director, and for which they attended 3 oral hearings on 30 November 2017, 31 January 2018 and 19 April 2018 before the Board during which A1 gave evidence and answered questions raised of his claim  by the Adjudicator for the Board during which he also raised a new claim of fear of harm from the Nigerian authorities due to his activities in Hong Kong for the IPOB Movement in Nigeria formed by the Igbo population in 2012 for the restoration of an independent state for the indigenous people of Biafra but which has been outlawed by the Nigerian government, and in support of this new claim A1 produced further materials and information for the Board’s consideration.  On 24 August 2018 their appeal was dismissed by the Board which also confirmed the decisions of the Director.

13.In its decision the Board found serious problems and inconsistencies in A1’s evidence over his alleged monetary dispute with his family members that it rejected the credibility of his claim of fear of harm from them as being the reason for his overstaying in Hong Kong or that he would be harmed or killed by his family members upon his return to Nigeria, the credibility of which was further undermined by the fact that he failed to raise it upon his arrival in Hong Kong until almost 9 years later after his arrest, while his new claim of fear of harm from the Nigerian government over his alleged activities in Hong Kong for the IPOB Movement was also found to be equally problematic and incredible given the fact that he never raised it before and the absence of any reliable evidence of any action from the Nigerian government against him and the vagueness and uncertainties in his assertions of his involvement in the IPOB Movement that it also rejected this claim as not genuine and uncorroborated by independently verifiable evidence or reliable COI that his claim and that of A2 which premised fundamentally on his case for non-refoulement protection in Hong Kong failed on all the applicable grounds.

14.On 11 October 2018 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form, and in A1’s supporting affidavit of the same date he repeated his claim of being a member of the persecuted indigenous people of Biafra and attached a copy of a letter allegedly from IPOB confirming that he is the secretary of the Kam Tin/Yuen Long Zone of the Hong Kong IPOB Family which he had earlier presented to the Board as part of his evidence in support of his claim but which had been disregarded by the Board.

15.This letter which was dated 9 February 2018 and addressed to the Board allegedly by the Directorate of State of the Indigenous People of Biafra had in fact been considered and rejected by the Board for the reasons detailed in paragraphs 58 – 61 of its decision, and of which I do not find any error of law committed by the Board which had had the benefit of hearing A1 in evidence not just in one but three oral hearings, and whose claims based on alleged threats arose from his family dispute or from his involvement in the IPOB Movement in Hong Kong had both been rejected essentially on its adverse findings on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 11 – 118 of its decision, and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge those findings of the Board.

16.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.  

17.Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm from A1’s family members in the Applicants’ claim if true is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Nigeria, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

18.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 Applicants’ claim.

19.I am of course mindful of the fact that A2 is a minor of 8 years old and not legally represented in these proceedings as required by Order 80 Rule 2 of the Rules of High Court, and that it would be necessary to separately consider and examine whether his claim had also been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness in proceedings of this nature, and to see whether there are underlying matters that may support potential minor-specific non-refoulement bases which had not been properly advanced to the Board due to lack of legal representation in the appeal before the Board, when the proper approach of which has been considered by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971 and held that claims of minor children even if based on the same set of primary facts are separate from the claims of their parents and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

20.In the present case, the claim of A2 was premised fundamentally on his father’s claim of harm from sources which have however no knowledge of him at all and hence no evidence of any threats from anyone directed against A2.  Above all, the Board as noted above after considering the evidence of his father given during 3 oral hearings in fact disbelieved him and rejected the credibility of his claims upon which A2’s was based, and at his age it is not a case that A2 could have given any evidence in relation to his father’s claims anyway.

21.Having looked at the evidence filed in this application, I do not see any material that may give rise to any concern that there may be non-refoulement grounds which relate specifically to A2 that had not been advanced to the Board or considered by it due to lack of legal representation before the Board.

22.For these reasons I do not find A2’s intended judicial review to have any merits, I shall therefore treat the absence of legal representation for him in these proceedings as mere irregularity as it would not serve any useful purpose for him to be so represented given the lack of merits in his intended application.    

23.In the premises, and for the reasons given, I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and I accordingly refuse their leave application.

Dated the 10^th day of September 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