Nnam Emmanuel Miracle v. Torture Claims Appeal Board

HCAL 3887/2019

[2022] HKCFI 79

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3887 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:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 44-year-old national of Nigeria who last arrived in Hong Kong on 28 March 2015 as a visitor with permission to remain up to 2 May 2015 when he did not depart and instead overstayed, and was subsequently arrested by police more than 2 years later on 3 January 2018.  After he 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 three business investors of his company for losing their money and/or due to the political situation in Nigeria.  He was subsequently released on recognizance pending the determination of his claim. 

2.The Applicant was born and raised in Akpugo, Enugu State, Nigeria.  After leaving school he worked in various jobs, supported the opposition political party Peoples Democratic Party (“PDP”) by regularly attending their local meetings and rallies, and started in 2002 to run his own business importing electronic goods for sale in Lagos where 3 of his neighbours would from time to time invest money in his business by depositing money with him for purchasing goods overseas including Hong Kong.

3.In early 2015 the Applicant agreed with his investors that he was to travel to Hong Kong to purchase goods with money to be remitted by his investors to him upon his arrival in Hong Kong, and so he travelled to Hong Kong on 28 March 2015 and subsequently received the remittance of HK$250,000 from his investors, but later the money was stolen but he was too scared to report the loss to the police, and when he informed his investors of the loss on the phone, they became furious and blamed him for their loss and threatened to kill him if he failed to repay the money to them, and also given the unstable political situation in Nigeria, the Applicant was therefore afraid to return to his home country and instead overstayed in Hong Kong, and upon his subsequent arrest by police more than 2 years later in January 2018, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 6 September 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).              

4.By a Notice of Decision dated 23 October 2018 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”).

5.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and doubted the credibility of his claim due to his failure to report the loss to the police or to raise his claim at the earliest opportunity until more than 2 years later after his arrest by the police, that even if his claim were true that the level of risk of harm from his business investors upon his return to Nigeria was assessed as low due to the absence of any past ill-treatment from them, that in any event it was a private monetary dispute between him and his investors without any official involvement that state or police protection would be available to the Applicant if resorted to, that there was no evidence of any threat of harm to him due to any political reasons in Nigeria in the past that there is no indication of any such future risk to him upon his return to 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 190 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 Abuja where it would be difficult if not impossible for his business investors to locate him.

6.On 5 November 2018 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 2 October 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 11 December 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found the level of vagueness and incoherence in the Applicant’s account seriously marked and his inability to answer quite simple questions about the basic matters at the core of his claim or anything about his alleged business extremely damaging to the credibility of his claim, which was further undermined by the fact that he failed to report the alleged loss of the money to the police or to seek their help or to raise his claim at the earliest opportunity when he received the threats from his business partners, while his inability to answer any questions about his claimed past involvement in PDP or any political activities in Nigeria also damaged his claim to have any previous or current affiliation with any political parties or activities that it concluded that his claim of fear of harm from his business investors or for any political reasons upon his return to Nigeria contained no element of any truth that his claim for non-refoulement protection failed on all applicable grounds.     

8.On 30 December 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, and in his supporting affidavit of the same date he just stated that he rejects the decision as it disregarded his dangerous situation but without providing any details or elaboration as to how it did so.  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 24 – 33 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 also been established by the Director in his 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, a decision 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.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.Furthermore, the Applicant recently on 2 December 2021 wrote to the Court to request to withdraw his application as the threats to his life and danger posted to him in his home country have been significantly reduced that he wants to return to Nigeria.

14.In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and taking into account of his latest confirmation that it would be safe for him to return to his home country, I refuse to grant leave and accordingly dismiss his leave application.

Dated the 6^th day of January 2022. 

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