Loua Cece v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2371/2018

[2022] HKCFI 3200

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2371 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.The applicant applies for leave to apply for judicial review of the Decision dated 2 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will 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 has dual nationalities of Nigeria and Guinea. He entered Hong Kong as a visitor on 21 April 2009 and was arrested by the Customs and Excise Department on the same date. Subsequently, he was convicted of a drug-related offence and sentenced to prison for 14 years. On 19 June 2017, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by the secret agents or the authorities of Nigeria as he was involved with a group named “Movement for the Actualization of the Sovereign State of Biafra” (“MASSOB”). He stated that he could not be refouled to Guinea as he would be sent back to Nigeria and face the same risk of harm.

5.According to the applicant, MASSOB was a group advocating for the independence of the state of Baifra. As a result, many of the MASSOB participants were detained by the Nigerian government for the offence of treason. The applicant joined MASSOB in around 2003 and became substantially involved. In 2006, there was a large scale of killing activities against the Christian population by the Muslim in the northern part of Nigeria. The public in the Anambra State was outrageous about the killing and started to kill the Muslim population in the northern part. The Nigerian government accused the applicant and the MASSOB of being the mastermind behind.

6.One day in September 2006, the applicant, together with his peers, was abducted and detained by unknown secret agents. During their detention, the applicant was tortured by the secret agents. They wanted the applicant and MASSOB to confess the killing of Muslims. It was until April 2007 when the applicant was released from the detention after the bribery made by the MASSOB leader to the government officials. The applicant claimed to suffer serious injuries and also became weak due to long-term malnutrition. Thereafter, the applicant hid in different places to avoid the secret agents.

7.In August 2008, the applicant traveled to Guinea and joined the Biafra Exile Group there. He remained in Guinea until around January 2009 when the exile members grew concerns over the Guinean government’s possible extradition, which would send them back to Nigeria. Out of fear, the applicant escaped to different African countries. In the end, he fled to Hong Kong. While he was in Hong Kong, he learnt that the secret agents and authorities in Nigeria still aimed to eliminate the MASSOB in the name of national security. Thus, he stayed in Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 21 May 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

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

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  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

d.  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”).

9.By way of the Director’s Decision, the Director dismissed the applicant’s claim as his claimed fear of harm was groundless. In elaboration, the Director found that (i) the perceived risk of harm from the Nigerian government was largely speculative [12]; (ii) his credibility was in doubt [13]; (iii) the assertion that the Guinean government would extradite him was also speculative [14]; (iv) the applicant’s claimed double jeopardy was not substantiated [15]; (v) state protection would be available to him [16]-[17]; and (vi) internal relocation was also a viable option [18].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. On 19 October 2018, the Board conducted an oral hearing for his appeal, during which the applicant appeared to be able to answer questions and make submissions without any sign of discomfort [11]. He was able to speak fluent English and the proceedings was therefore conducted in English [66].

11.Having considered the applicant’s evidence, the Board made the following observations. First, the applicant had not proved to the Board’s satisfaction that he was a national of Guinea. Even if he was, doubts arose on whether he could reside safely in Guinea [64]-[72]. Second, it was plausible that the applicant was a member of MASSOB at the material time. However, on his own evidence, including the fact that he went to the governmental authority to collect his passport without being arrested, the Board found that he was not actively pursued by the Nigerian government [74]-[75]. Thirdly, the Board examined his immigration records and found that his travels among the countries did not support his assertion that it was due to the risk of harm in Nigeria [76]-[85]. Further, the Board opined that there was no evidence suggesting that the applicant’s past membership between 2003 to 2006 would attract the government’s adverse interest in him [86]. Fourthly, the Board also rejected his claimed risk of harm as a Christian [87]. Fifthly, the Board equally rejected the applicant’s basis that he would be prosecuted in Nigeria as the potential prosecution against him in Nigeria was, under the law of Hong Kong, not a basis for the non-refoulement claim [88].

12.Based on the aforesaid observations, the Board concluded that, while the applicant might be a member of MASSOB, his evidence on the past events, namely, the detention and torture of the secret agents was not credible. It therefore refused to accept that the applicant would face any risk of harm upon refoulement [91].

13.For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

14.The applicant has filed Form 86 dated 26 October 2018 for leave to apply for judicial review of the Board’s Decision.

15.In his affidavit in support of his application, the applicant said he is not satisfied with the Board’s Decision.

DISCUSSION

16.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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

18.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.”

19.The Board had assessed his case and did not accept his evidence on the facts of his case. The ground in paragraph 15 is only his opinion and not a valid reason to challenge the Board’s Decision.

20.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.

21.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

22.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 1^st day of November 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