Kenneth Mathew Chinenyeze v. Torture Claims Appeal Board

HCAL 2916/2019

[2023] HKCFI 2335

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2916 OF 2019

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 50-year-old national of Nigeria who arrived in Hong Kong on 5 March 2014 as a visitor with permission to remain as such up to 19 March 2014 when he did not depart and instead overstayed, and was arrested by police some 1 ½ years later on 20 November 2015. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Nigeria he would be harmed or killed by the terrorist group Boko Haram. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Mafa Village, Bornu State, Nigeria. After leaving school he ran a garment business in Jos, Plateu importing clothing from Hong Kong and mainland China for sale in Nigeria.

3.In March 2014 he travelled to Hong Kong to purchase goods for his business, during which he was informed by one of his brothers in Nigeria that his mother and 4 of his other siblings had been killed by Boko Haram during their terrorist attack of his home village, and hence he was afraid to return to Nigeria for fear of being harmed or killed by the Boko Haram, and therefore overstayed in Hong Kong, and upon his subsequent arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 22 March 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.By a Notice of Decision dated 24 April 2018 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”).

5.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 Boko Haram upon his return to Nigeria as low due to the absence of any past ill-treatment from them, that there is no reliable evidence that his mother and siblings had been killed by Boko Haram or any adverse interest that they may have in the Applicant, that in any event Boko Haram is regarded as a terrorist group in Nigeria and that according to relevant Country of Origin Information (“COI”) successful military actions launched by the Nigerian Army in recent years against Boko Haram that they are reported to have been defeated and are no longer active in most part of Nigeria, that in any event state or police protection would be available to the Applicant if resorted to, and that reliable and objective COI show that reasonable internal relocation alternatives are available in Nigeria with a large population of 186 million people spread across a vast territory of more than 920,000 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 Boko Haram are not active and where it would be difficult if not impossible for them to locate him.

6.On 8 May 2018 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 1 April 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 6 September 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

7.In its decision the Board found no reliable evidence of any attack by Boko Haram of the Applicant’s home village or his family as alleged or any reason for Boko Haram to have any adverse interest in the Applicant, and that with successful military actions taken by the Nigerian government against Boko Haram in recent years that it is not accepted that the Applicant will face any real risk of harm from them outside the northern part of Nigeria where Boko Haram used to be active, and that with state protection available as well as reasonable internal relocation for the Applicant to move safely to other areas of Nigeria away from any activities of Boko Haram that it is not accepted that he would face any real risk of harm from them upon his return to Nigeria, while his claimed fear of harm from the Nigerian authorities due to his alleged involvement in the anti-government organization Movement for the Actualization of the Sovereign State of Biafra (“MASSOB”) was a recent invention of the Applicant before the Board which was never raised in his NCF or in his screening before the Director in the absence of any reliable evidence of his actual involvement in MASSOB, and with the fact that he was able to leave the country for his various business trips to Hong Kong and China in the past show that there is no basis at all for his claim of any adverse interest of the Nigerian government or authorities in him, and concluded that the Applicant has failed to establish any real risk of any harm from anyone upon his return to Nigeria that his claim for non-refoulement protection failed on all applicable grounds.

8.On 3 October 2019 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 in which he just stated that he disagrees with the decision but without providing any elaboration as to why, 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.

9.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.

10.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 37 - 46 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.

11.The fact is that it has also been established by both the Director and the Board in their respective 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

12.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.

13.Moreover, the Applicant has recently filed an affirmation requesting to “close” his case as he wants to exit Hong Kong.

14.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 of his wish to leave Hong Kong, I accordingly dismiss his leave application.

Dated the 14^th day of September 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