Omega Izuchukwu Solomon v. Torture Claims Appeal Board

HCAL 649/2021

[2023] HKCFI 2165

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 649 OF 2021

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 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 35-year-old national of Nigeria who arrived in Hong Kong on 28 June 2017 based on his dependent visa due to his marriage to a local Hong Kong resident, but upon the expiration of the visa on 28 June 2018 and when it was not extended, he therefore overstayed in Hong Kong, and more than 5 months later on 29 November 2018 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Nigeria he would be harmed or killed by his friend Luke for failing to repay his loan to Luke. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Okpuala Ngwa, Abia State, Nigeria. After leaving school he worked as a farmer in his home district to make his living.

3.In 2016 he was introduced to his wife from Hong Kong and started their relationship online, and later when he decided to marry her in Nigeria, he borrowed an interest-free loan from his friend Luke for the wedding expenses including those for flying his then girlfriend to Nigeria for their wedding, with the loan to be repaid within one year.

4.On 3 January 2017 the Applicant married his wife in Nigeria, whereupon his wife returned to Hong Kong to apply for a dependent visa for him, and upon its issue on 6 July 2017 by the Immigration Department, the Applicant then arrived in Hong Kong on 28 June 2017 to live with his wife in her home, but during which he failed to repay his loan to Luke who then made death threats against him, and later when his relationship with his wife turned bad and that he left her home to stay at his friend’s place, but upon the expiration of his dependent visa he was afraid to return to Nigeria and so he overstayed in Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 30 May 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 30 July 2019 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”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by Luke upon his return to Nigeria due to the absence of or low intensity and frequency of past ill-treatment from Luke, that there is no evidence of any real intention of Luke to seriously harm or kill him other than to press him for repayment of his loan, that in any event it was a private monetary dispute between the 2 of them 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 Nigeria with a large population of 203 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 areas of the country away from his home district in large cities such as Lagos where it would be difficult if not impossible for Luke to locate him.

7.On 8 August 2019 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 23 October 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 12 April 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it rejected his claims of having borrowed money from Luke or that he had any monetary dispute with Luke or that there were any threats from Luke or that he was in fear of harm from Luke that caused him to seek non-refoulement protection in Hong Kong, and concluded that the Applicant had fabricated the entirety of his claim for non-refoulement protection which failed on all applicable grounds.

9.On 7 May 2021 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 or in his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for 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.

10.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.

11.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 54 - 57 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.

12.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 real 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.

13.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.

14.Furthermore, the Applicant on 27 June 2023 filed an affirmation requesting to withdraw his application as he has been granted his dependent visa but without providing any further details or evidence in support.

15.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation to withdraw his application, I accordingly dismiss his leave application.

Dated the 23^rd day of August 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