Paul Moore Hyginus Tochukwu v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 835/2019

[2023] HKCFI 789

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 835 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 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 7 March 2019 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 is a national of Nigeria. He entered Hong Kong as a visitor on 30 November 2009 and was permitted to stay until 14 December 2009. However, he did not depart and had overstayed since 15 December 2009. On 10 August 2012, he was arrested by the police for overstaying. On 15 August 2012, he lodged a torture claim which was rejected on 17 December 2012. His subsequent petition to the Board was also rejected on 8 March 2013. On 24 March 2014, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by (i) his relatives and local community due to a land dispute, and (ii) radical Muslims since he was a Christian.

5.According to the applicant, his father was killed by his relatives and local community due to a land dispute when he was 7 years old. As the only male child of the family, he stood to inherit the disputed land. While nothing eventful happened from 1987 to 2003, he was brought to Kano State by his uncle while his mother stayed in their home village. She was later poisoned by their enemies and died in 2005. During the applicant’s stay in Kano State, he encountered three major attacks from the Muslims who vowed to kill the Christians indiscriminately. The applicant was able to escape these attacks unharmed but he also claimed to be assaulted on several occasions. Out of fear, he eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 9 of the Notice of Decision dated 7 July 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

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

a.  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”);

b.  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

c.  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 dismissed the applicant’s claim as the level of risk of harm upon refoulement was assessed to be low. In elaboration, the Director found that (i) insofar as the claimed land dispute was concerned, the applicant was never harmed by his relatives or the local community. Meanwhile, he had been living peacefully in his home village for 15 years and it was implausible that the alleged enemies demonstrated strong enmity to have him killed [17]; (ii) the applicant’s conducts were inconsistent with someone who genuinely feared a risk of harm [18]; (iii) it was not accepted that the enemies could trace him all over the home country [19]; (iv) the low intensity and frequency of past ill-treatments from the Muslims indicated an unlikelihood of future risk of harm [20]; (v) his conducts after the alleged attacks, such as failure to report to the authority and his return to the home vicinity after the attacks, were inconsistent with someone who feared the claimed risk of harm [21]-[22]; (vi) state protection would be available to him [23]-[24]; and (vii) internal relocation was a viable option [25]-[26]. In passing, the Director also found that his credibility was damaged [27].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 15 January 2019, the Board conducted an oral hearing for his appeal.

9.The Board found that the applicant’s evidence during the screening interview was inherently inconsistent [12]-[19]. It refused to accept the applicant’s explanation for omitting to include the land dispute as part of his claim during the interview [19]. It further considered that the applicant’s immigration history and his conducts were inconsistent with someone who feared a risk of harm [20]-[21]. The Board noted that the applicant provided different answers as to why his uncle took him to Kano State [22]-[24]; and that he was vague as to the reason of leaving Nigeria [25]-[29]. In light of these inconsistencies, the Board refused to accept his claim as credible [30].

10.In addition, the Board found that there was no evidence that he was harmed by the alleged enemies due to the land dispute [33]; that state protection would be available to him [34]-[35]; and that internal relocation was also a viable option [36]-[41].

11.For the aforesaid 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

12.The applicant has filed Form 86 dated 26 March 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affidavit in support of his application, the applicant said that his problem is still not solved and he will be in danger if he returns to his country.

DISCUSSION

14.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).

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

16.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.”

17.The Board did not accept his evidence and found that state protection and alternative internal relocation are available to him. There is no valid reason to challenge the Board’s Decision.

18.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.

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

CONCLUSION

20.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 11^th day of April 2023

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