Ejebu Ifeanyi Cyprian v. Torture Claims Appeal Board

HCAL 1472/2019

[2023] HKCFI 2387

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1472 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:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 50-year-old of dual nationalities of Nigeria and Uganda who arrived in Hong Kong on 12 July 2014 on a Ugandan passport with a different identity as a visitor with permission to remain as such up to 17 July 2014 when he did not depart and instead overstayed, and was arrested by police more than 2 months later on 22 September 2014.  After he was referred to the Immigration Department for investigation, he confessed his identity as a Nigerian and that he actually came from Nigeria, and raised a non-refoulement claim on the basis that if he returned to Nigeria he would be harmed or killed by his uncle over a land dispute with his father and/or by the Muslim terrorist group Boko Haram due to his Christian faith.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born to a Nigerian father and a Ugandan mother and raised as a Christian in Ibadan, Oyo State, Nigeria where he had worked in his father’s garment business after also spending time in Uganda with his mother.

3.In 2005 his father travelled to Imo State to inspect the farmland which his father and his uncle had inherited from his grandfather, and discovered that his uncle had taken over all the land as his own which led to a heated quarrel with his uncle who then threatened to kill his father and family should his father dare to raise any issue over the land.

4.Ignoring his uncle’s threats, his father in 2006 together with the Applicant and other siblings tried to take possession of the disputed land, but were stopped by his uncle and followers who attacked them with weapons that they had to retreat and sought help from the police who however regarded it as their private land dispute within their family and refused to take any action against his uncle.

5.The dispute between his father and his uncle persisted over the years, and one night in December 2007 his uncle and followers came to the Applicant’s home to demand his father to abandon the claim over the land, and when his father refused, his uncle and followers proceeded to attack his father and eventually killed him during the fight.         

6.After their father was killed, the Applicant and his siblings became fearful for their life and fled from their home district for the northern part of the country, with the Applicant settling in Borno State where he started his garment business without further incidents from his uncle.

7.However, one day in 2012 when he visited his home district, he was ambushed and attacked by his uncle’s men who mistaken him to be his elder brother who was the target of their attack, and upon realizing their mistake, they released the Applicant who then rushed back to Borno State.

8.In 2013 the Muslim terrorist group Boko Haram started to threaten and attack Christians in Borno State, and one day in February 2014 while he was away from his home village on a business trip, the Applicant was devastated when he was later told that Boko Haram had launched a bombing attack on his home village killing many villagers including 2 of his brothers.  

9.After that attack the Applicant felt it was no longer safe from the threats from his uncle and Boko Haram in Nigeria, and so on 4 July 2014 he departed for Thailand, and on 12 July 2014 he arrived in Hong Kong on his false Ugandan passport and subsequently overstayed, and after his arrest by the police he confessed his true identity in Nigeria and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 6 April 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

10.By a Notice of Decision dated 23 May 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”).

11.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 uncle or the terrorist group Boko Haram upon his return to Nigeria as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence that he had been targeted by his uncle for harm, that in any event the dispute with his uncle was a private matter within his family without any official involvement that state or police protection would be available to the Applicant if resorted to and also from any harm from Boko Haram which was regarded as a terrorist group by the Nigerian government which had launched successful military actions to drive them to the northern part of the country, 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 170 million people spread across a vast territory of more than 900,000 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 anyone to locate him, while with his dual nationality the Applicant can also relocate to Uganda where his mother is residing and where there is no reported activities of either his uncle or the Boko Haram that the Applicant can safely make his home there without any risk of harm from either of them or from any other threats.

12.On 31 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 10 January 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 26 April 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

13.In its decision the Board accepted the Applicant’s claim of fear of harm from his uncle or Boko Haram or any other Muslim anti-Christians religious extremists in Nigeria but found on the basis of relevant COI that there are no known activities from Boko Harm or any other anti-Christian extremist groups in Uganda where his mother resides and where the Applicant can settle under his dual nationality as a Ugandan without any risk of harm from his uncle or the Boko Haram or any other anti-Christian religious extremist or terrorist groups and without any risk of being located that his claim for non-refoulement protection in Hong Kong failed on all applicable grounds.    

14.On 30 May 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, 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.

15.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.

16.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nigeria or Uganda, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

17.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.

18.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly I refuse his leave application.

Dated the 21^st 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