Nnabuihe Gift Ekeoma v. Torture Claims Appeal Board

HCAL 140/2019

[2021] HKCFI 3896

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 140 of 2019

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 37-year-old national of Nigeria who arrived in Hong Kong on 22 June 2008 as a visitor with permission to remain up to 13 July 2008 when he did not depart and instead overstayed, and was arrested by police almost a year later on 23 June 2009.  After he was referred to the Immigration Department for investigation, 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 members of the then ruling political party Peoples Democratic Party (“PDP”) due to his father’s involvement in the opposition party All Progressives Grand Alliance (“APGA”).  He was subsequently released on recognizance pending the determination of his claim. 

2.The Applicant was born and raised in Ikenegbu, Owerri, Imo State, Nigeria.  After leaving school he ran his own business in his home district where his father was a local leader of APGA and ran for election in Imo State in the 2007 General Election but lost, and after PDP won the presidential election and remained as the ruling party, their members and supporters started to intimidate and attack members of their oppositions including APGA, and after one occasion in June 2008 when some PDP people came to the Applicant’s home looking for his father who was then not in the house while the Applicant also managed to flee and took shelter in his brother’s place in Abia State where he stayed without incidents, but as he was still fearful for his life, he therefore departed Nigeria on 21 June 2008 for Hong Kong where he overstayed, and upon his arrest by police almost a year later, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 19 June 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).              

3.By a Notice of Decision dated 25 February 2015 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”).

4.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 those PDP people upon his return to Nigeria as low due to the absence of any past ill-treatment from them, that any adverse interest which those PDP people may have on him as to his father’s political activities would have disappeared after all these years since he left the country in 2008, 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”) 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 other states such as Abia State, where the Applicant’s brother resides and where it would be difficult if not impossible for those PDP people to locate him.

5.By a Notice of Further Decision dated 24 May 2017 the Director also rejected the Applicant’s claim of risk that his other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”) might be violated after receiving no response from him to an earlier written invitation for him to submit any additional information relevant to his BOR 2 claim and upon finding that he had failed to establish a personal and real risk of his such rights under the HKBOR including right to life under BOR 2 being violated upon his return to Nigeria.

6.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 appeal which was filed on 10 March 2015, and for which he attended an oral hearing on 9 October 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 11 December 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

7.In its decision the Board found serious gaps, inconsistencies and contradictions in the Applicant’s evidence given to the Director and those at the appeal hearing that it doubted the credibility of his claim of fear of harm from those PDP people that caused him to depart his country for Hong Kong which was further undermined by his failure to raise his claim upon his arrival until almost one year later and only after his arrest by the police, that there is no evidence or reason for those PDP people to have any adverse interest in him as he has never been involved in any politics and that his father has since passed away, and that in any event PDP has since lost the following general elections and is no longer the ruling power that it concluded that there is not a real risk that the Applicant would face under any of the proscribed forms of harm upon his return to Nigeria that his claim for non-refoulement protection failed on all applicable grounds. 

8.On 15 January 2019 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 or in his supporting affidavit of the same date in which he just repeated his claim as before that his life is still in danger in his home country that he does not want to return but without putting forth 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.

9.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. 

10.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 51 – 99 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.   

11.The fact is that it has been established by the Director in his decisions 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, decisions also confirmed by the Board, 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 31^st day of December 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