Abakwam Obinna Alias Kwesi Remigius v. Torture Claims Appeal Board

HCAL 99/2019

[2022] HKCFI 2236

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 99 of 2019

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 oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.The Applicant is a 45-year-old national of Nigeria and Ghana who arrived in Hong Kong in 2004 as a visitor under a Ghanaian passport of another identity when he subsequently overstayed, and was arrested by police some 8 years later for overstaying and for taking unauthorized employment for which he was convicted and sentenced to prison for 6 months, and upon his discharge from prison and was referred to the Immigration Department for deportation, he then 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 mother’s creditor over her unpaid debts. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born in Ghana to a Ghanaian father and a Nigerian mother who brought him back to Nigeria shortly after his birth where he was raised by his mother without his father whom he had not seen since.

3.After receiving some schooling he worked as a mechanic and a driver before starting a business in 2003 with his mother selling mobile phones and accessories in their home district in Lagos State in Nigeria with the help of a loan borrowed by his mother from a local money-lender repayable within one year and with monthly interest payments.

4.However, in early 2004 his mother was hospitalized with a serious kidney problem, and as he had to look after her and was unable to run their business which was eventually closed down, and when they were unable to repay the loan, his mother’s creditor sent men to threaten and assault them, and after one occasion when those shot and killed his mother, the Applicant fled to Ghana to hide in a friend’s place, and sometime later in 2004 he arrived in Hong Kong under a Ghanaian passport with a different identity and overstayed, and after he was arrested by police some 8 years later in 2012, he then raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 22 May 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 31 October 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 his mother’s creditor and followers upon his return to Nigeria or Ghana as low due to the low intensity and frequency of past ill-treatment from them, that it is doubtful that after all these years since he felt Nigeria that there would still be any adverse interest in him, that in any event it was a private monetary dispute between him and his mother’s creditor without 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 both Nigeria and Ghana each with a large population spread across a vast territory 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 or any place in Ghana where it would be difficult if not impossible for anyone to locate him.

7.On 12 November 2014 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 9 October 2015 with his lawyer from DLS before the Board during which he declined to give any oral evidence or to answer any question raised of his claim by the Adjudicator for the Board. On 3 January 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found in the absence of any oral evidence or answer from the Applicant to clarify or explain various inconsistencies and contradictions in his evidence given earlier to the Director and in the information in the hearing bundle before the Board that it doubted the credibility of his claim, which was further undermined by his failure to raise it upon his first arrival in Hong Kong until more than 8 years later and only after his arrest by the police, and that in any event it was a private monetary dispute between him and his mother’s creditor without 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 areas of Nigeria away from his home district or to Ghana where he had stayed before without incidents that his claim for non-refoulement protection failed on all applicable grounds.

9.Meanwhile on 16 March 2017 the Director on his own initiative invited the Applicant to submit any 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”), and after receiving and considering further submissions from him, the Director by a Notice of Further Decision dated 31 March 2017 also rejected the Applicant’s BOR 2 Claim upon finding the absence of any additional facts which may be relevant to BOR 2 Risk that the Applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to Nigeria.

10.On 13 April 2017 the Applicant again lodged an appeal to the Board against this further decision of the Director, and for which the Board did not conduct any further oral hearing and proceeded to deal with his appeal in his absence and on paper, and on 28 December 2018 it also dismissed his appeal regarding his BOR 2 Claim upon finding no evidence to support his BOR 2 Claim at all and also confirmed the Director’s further decision.

11.On 10 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, but no ground for seeking relief was given in his Form or in his supporting affidavit of the same date to which he just attached all the documents from his appeal bundle before the Board, while in his later written submissions he merely repeated his claim of fear of harm from his mother’s creditor as before but 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.

12.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.

13.In the Applicant’s case, the fact is that on the factual basis of his own case at the highest that it was a private monetary dispute without any official involvement that his claim simply does not engage the BOR 2 ground, and as it has also been established by both the Director and the Board in their earlier decisions 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 or anywhere in Ghana, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.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 under all the applicable grounds.

15.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 22^nd day of July 2022

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