Oguzie Ikechukwu Charles v. Torture Claims Appeal Board

HCAL 1518/2018

[2021] HKCFI 2925

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1518 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 Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 55-year-old national of Nigeria who arrived in Hong Kong on 17 May 2007 with permission to remain as a visitor for 21 days during which he was arrested by police on 19 May 2007 for the offence of money laundering activities for which he was subsequently convicted and sentenced to prison for 28 months, during which he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Nigeria he would be harmed or killed by his business partner for disclosing to the police of their illegal activities. He was subsequently released on recognizance upon his discharge from prison and pending the determination of his claim.

2.The Applicant was born and raised in Owerri Town, Imo State, Nigeria. After leaving school he worked as an automobile mechanic in Lagos, and in early 2007 while visiting Hong Kong he met his business partner Jerry who had business connections in Hong Kong and accepted Jerry’s invitation to join his mobile phones and electronic business.

3.In April 2007 the Applicant was instructed by Jerry to travel to Hong Kong to carry out certain transactions in a local bank during which he was arrested by police for the offence of money laundering, and for which he was subsequently convicted and sentenced to prison for 28 months.

4.Whilst being detained in custody pending trial, the Applicant was warned by someone sent by Jerry not to disclose anything to the police, but to which the Applicant refused, and during his imprisonment he heard from his friends and parents that Jerry was looking for him in Nigeria with threats to kill him for disclosing their illegal activities to the police, and later when he heard that his mother had been killed by some unknown persons whom he suspected were sent by Jerry, the Applicant became fearful of being killed by Jerry if refouled to Nigeria after completing his sentence in Hong Kong, and so he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 7 August 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.By a Notice of Decision dated 24 November 2014 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), 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”).

6.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 Jerry and his men upon his return to Nigeria as low due to the absence of or low intensity and frequency of past ill-treatment from, that there is no reliable evidence of any threats from Jerry or of the killing of his mother other than just hearsay or speculation, that in any event 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”) show that reasonable internal relocation alternatives are available in Nigeria with a large population of 177 million people spread across a vast territory of more than 910,000 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 Port Harcourt where it would be difficult if not impossible for Jerry to locate him.

7.By a Notice of Further Decision dated 8 May 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his 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”).

8.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 4 December 2014, and for which he attended 3 oral hearings on 27 October 2015, 13 November 2015 and 9 December 2015 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 5 June 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board doubted the Applicant’s evidence of threats of harm from Jerry and his men against him or his family, and found in any event in the absence of any official involvement that state/police protection would be available to the Applicant 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 by Jerry or his men that his claim for non-refoulement protection failed on all applicable grounds.  

10.On 1 August 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 just repeated his claim as before of fear of harm from Jerry if refouled to Nigeria without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of 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 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.     

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 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