Egbolibe Daniel v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2324/2018

[2022] HKCFI 1078

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2324 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 11 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.The applicant is a national of Nigeria.  He entered Hong Kong as a visitor on 22 July 2015.  He applied for an extension of stay after the limitation of stay expired and was permitted to stay until 16 August 2015. However, he did not depart and had overstayed since 17 August 2015.  On 9 April 2016, he was arrested by the police.  On 11 April 2016, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by (i) the Nigeria Army (“the Army”) and the police for being a member of the Indigenous People of Biafra (“IPOB”), and (ii) by the Boko Haram (“Boko”) for being a Christian and the son of a pastor. 

5.According to the applicant, he joined the IPOB in 2014 and was quickly promoted to a high rank because of his financial sponsorship and active participation in the party’s events.  IPOB was an anti-government group fighting for the independence of Biafra.  The applicant’s popularity made him a target of the Nigerian government.  In January 2015, the Army crashed the IPOB’s meeting, torturing and killing the participants.  The applicant was whipped, struck at his head, stabbed at his right lower leg and burnt with chemical-heated article.  He lost his consciousness.  He was later hospitalized.  The applicant stated that he was not taken away by the Army because they thought he was dead.  Afterwards, the applicant relocated to Lagos.  However, in March 2015, when he was at the IPOB meeting, he was arrested and assaulted by the police in Lagos.  Out of fear, he fled to Hong Kong for protection.  While he was in Hong Kong, in December 2015, he learnt that his father and wife were killed by Boko.  Although he received no personal threats from Boko, he believed that it was Boko’s practice to kill a pastor and uproot the entire family.  Thus, he could only stay in Hong Kong for protection.  Details of his claim are set out in paragraph 6 of the Notice of Decision dated 29 August 2017 by the Director (“the Director’s Decision”) and paragraphs 8 to 20 of the Board’s Decision as described below.    

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

(1)   risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)   risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”);

(3)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

(4)   risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.By way of the Director’s Decision, the Director refused the applicant’s claim.  The Director refused to believe that there would be any real risk of him being harmed or killed by the authorities or Boko upon refoulement because (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13]; (ii) his perceived harm from the Army and the police was not as imminent and substantial as claimed [14]; (iii) state protection would be available to him [15]; and (iv) internal relocation was also an option open to him [16].

The Board’s Decision

8.The applicant appealed the Director’s Decisions to the Board.  The oral hearings for the applicant’s appeal were held on 30 May 2018, 16 August 2018 and 18 September 2018.  Both parties were legally represented. 

9.Prior to the oral hearings, the Board inquired with the applicant’s duty lawyer for the applicant’s medical reports on his alleged injuries caused by the Army in the January 2015 incident.  Nevertheless, the applicant’s duty lawyer replied that the applicant did not wish to rely on any medical reports [21].  Further, the counsel for the applicant reiterated before the Board that he did not seek to rely on any medical evidence [23].  The documents placed before the Board were considered [24].

10.The parties agreed on a list of issues.  Among them, the parties agreed that the applicant had scars on his legs and forearms [27].  The applicant’s counsel submitted that (i) the applicant was a key IPOB member who would face substantial ill-treatments by the government and the Army, and (ii) he faced threats from Boko for his role as a Christian and the son of a pastor [28].

11.Before the Board, the applicant confirmed that he would only rely on his written statements.  He was briefly examined by his own counsel and cross-examined by the Director in relation to the material aspects of his claim [30]-[53].  The Board also heard the evidence of Mr. Nebeuwa who claimed to be the financial secretary of IPOB Hong Kong [55] and gave evidence in relation to the operation of IPOB in Hong Kong [56]-[60]. 

12.In addition, the Board conducted inquiries with the applicant and considered the parties’ submissions [62]-[79].  The Board considered that the applicant’s oral evidence was generalized and lacked clarity [81].  His evidence was inherently inconsistent and contradicted with the country of origin information (“COI”) [82]-[84].  The Board also referred to the relevant COI which related to the applicant’s claim.  The COI suggested that the crackdown of IPOB from the government only started in August 2015 when the applicant was already in Hong Kong [85].  It dismissed the applicant’s challenge against the COI, which was on the basis that not all incidents were reported, as it found that there was rather extensive reporting on these incidents [87].  For reasons that the applicant simply provided generalized evidence and failed to give cogent explanations for the inconsistencies, the Board refused to accept his evidence [90].

13.Insofar as the cause to the applicant’s scars was concerned, the Board made no findings and placed little weight as the applicant insisted on not relying on any medical evidence [91]. 

14.Viewing all the evidence in totality, the Board found that the applicant’s claim was untrue and thus there was no real or substantial risk of harm from the government or Boko upon his refoulement [92]-[98].  For these reasons, the Board rejected the applicant’s claim and dismissed his appeal.

Application for leave to apply for judicial review

15.The applicant filed Form 86 on 23 October 2018 for leave to apply for judicial review of the Board’s Decision.

16.In his affirmation in support of his application, he said “…I am not satisfied with the Torture Claims Appeal/Petition Board Office, the decision which has been final determination regarding the Non-refoulement claim.”

DISCUSSION

17.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

18.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

19.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1).… …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

20.The applicant has not raised any valid ground to challenge the Board’s Decision. The Board had set out the reasons for its findings.

21.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

22.There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

23.I therefore refuse to grant leave for the applicant to apply for judicial review.  Accordingly, I dismiss his application.

Dated the 19^th day of April 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