Onyesoh Chukwudi Bartholomew v. Torture Claims Appeal Board

HCAL 1254/2019

[2023] HKCFI 2418

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1254 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;

Order by Deputy High Court Judge Bruno Chan:

1.  Leave to apply for Judicial Review be granted;

2.  The Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule of the RHC (Cap 4A); and

3.  The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party.

Observations for the Applicant:

1.The Applicant is a 40-year-old national of Nigeria who last arrived in Hong Kong on 3 August 2010 as a visitor with permission to remain as such up to 24 August 2010 when he did not depart and instead overstayed, and more than 6 years later on 8 November 2016 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 paternal uncle over a land dispute in his home district and/or by the Nigerian authorities for being a member of the separatist group Indigenous People of Biafra (“IPOB”) which proposed the secession of Biafra as a republic from Nigeria. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Agu Ukwu Nri, Aniocha L.G.A, Anambra State, Nigeria. After leaving school he received training as a trader in a garment company before running his own trading business in District Onitsha, Anambra State, and supported the secession of Biafra from Nigeria as a republic by becoming a member of IPOB and by recruiting new members for the group and persuading people to support the movement.

3.In 2006, the Applicant’s uncle raised issues with his father over the distribution of his grandfather’s estate including some farmlands in their home district in which his uncle demanded for a bigger share, which had led to constant quarrels between the 2 families, and upon the death of the Applicant’s father in late 2006 when the estate was distributed to the Applicant and his 2 brothers, his uncle then turned his confrontations against them.

4.One day in late 2006 his uncle with his followers came to the Applicant’s shop and assaulted the Applicant with broken bottles that injured his right elbow and forearm, but the Applicant managed to make his escape from the shop and ran home, whereupon he sought help from the village elders to resolve the dispute, for which the village elders later out forward some solutions to resolve the dispute but which were all rejected by his uncle.

5.For the next several years his uncle continued to press and threaten the Applicant, during which 2 of the Applicant’s sisters were kidnapped and killed by unknown men whom the Applicant suspected were sent by his uncle to force the Applicant and his brothers to yield to his demands.

6.Fearing that the same fate would happen to him, the Applicant in between 2007 and 2010 made several various trips out of Nigeria for Benin, Doha and Hong Kong, and on his last trip to Hong Kong on 3 August 2010, he subsequently overstayed, and more than 6 years later in November 2016 he surrendered to the Immigration Department and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 15 September 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.During his screening interview before the immigration officer, in addition to his claimed fear of harm from his uncle, the Applicant also raised a claim that he feared of harm from the Nigerian authorities due to his membership of IPOB that he would face the risk of being tortured and prosecuted by the Nigerian authorities if refouled to his home country given that the Nigerian military has since his departure of the country taken military actions known as Operation Python Dance II in the eastern region of Nigeria searching and killing IPOB members and people in their support that he feared of also being killed by the Nigerian authorities or military upon his return to his home country.

8.By a Notice of Decision dated 6 November 2017 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”).

9.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claims and assessed the level of risk of harm from his uncle upon his return to Nigeria as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of his uncle to seriously harm or kill him or that his uncle was behind the kidnapping and murder of the Applicant’s sisters, that in any event it was a private land dispute between them within the family without any official involvement that state or police protection would be available to the Applicant upon his return to Nigeria if resorted to, that there is no evidence that the Applicant had been a member of or been involved in IPOB’s activities other than his bare assertions and the fact that he was able to move in and out of Nigeria on so many occasions between 2007 and 2010 without any problem that it is not accepted that he will face any risk from the Nigerian authorities, while the Nigerian military did subsequently launch Operation Python Dance II but it was not solely against IPOB members but also against all the criminal elements in the country for the purpose of stopping crimes in Nigeria, 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 190 million people spread across a vast territory of more than 923,000 million square kilometres that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from his home district in large cities such as Lagos where it would be difficult if not impossible for his uncle to locate him.

10.On 20 November 2017, 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 November 2018 before the Board during which he gave evidence and answered questions raised of his claims by the Adjudicator for the Board. On 6 May 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.In its decision the Board found material inconsistencies discrepancies and vagueness in the Applicant’s evidence as to his claimed fear of harm from his uncle that it attached no credence at all to his claim to have entered Hong Kong for international protection and accepted no part of his claim that he will face any real risk of harm of any sorts if refouled to his home country, that the credibility of his claim was further undermined by his failure to raise it upon first arriving in Hong Kong until more than 6 years later, and that in any event that his dispute with his uncle was a private family dispute without any official involvement that state protection would be available to the Applicant upon his return to Nigeria, and as found by the Director that he can also relocate to a different part of the country without any risk of being located by his uncle that his claim for non-refoulement protection failed on all applicable grounds.

12.On 9 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, and in his supporting affidavit of the same date to which he just attached a copy of the decision without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

13.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.

14.In the Applicant’s case, the Board rejected his claim of fear of harm from his uncle essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 14 - 23 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 identified by the Applicant, I do not find any reasonably arguable basis to challenge such finding of the Board.

15.Furthermore, the fact is that it has been correctly established by both the Director and the Board in their respective decisions that the risk of harm from his uncle 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 no justification to afford him with non-refoulement protection in Hong Kong on the basis of such claimed risk from his uncle: see TK v Jenkins & Anor [2013] 1 HKC 526.

16.However, as regard his other claim of fear of harm from the Nigerian authorities or military for being a member of IPOB, a claim as noted above that he clearly made to the Director in his screening interview before the immigration officer, and which the Director did deal with in his report as to his evidence as well as the relevant COI regarding IPOB and the military actions of the Nigerian military against them (see [7.42], [23], [28], [30.20] – [30.23], & [59] of the Director’s decision), but which the Board did not appear to have dealt with at all in its decision either in its analysis of the Applicant’s evidence or made any reference to the relevant COI regarding the Nigerian’s military actions against IPOB or its members, despite having properly identified the Applicant’s case as early as in [3] of its decision when it stated:

“The Appellant’s case

3. The Appellant’s claim is set out in the Notice of Decision by the Director of Immigration (“the Director”), dated 6 November 2017, on the basis of interviews and written statements. The Appellant also gave evidence before the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”) through the interpreter. In summary, his claim is that he has a land dispute with his uncle Francis and in 2008 he joined an organization called the Indigenous People of Biafra (“IPOB”)…“

17.While the Board did as noted above properly assess and determine the Applicant’s claim regarding his fear of harm from his uncle over their land dispute, and was correct in rejecting such claim for the reasons referred to above, the Board did not appear to have done so at all in respect of the Applicant’s other claim regarding his alleged membership or involvement in IPOB, and as such his claimed fear of harm from the Nigerian authorities, and that if it did, the Board did not appear to have made any findings as to such facts or the credibility of such claim, or to give any or sufficient reasons for rejecting the claim in its decision.

18.In the premises, and for the reasons given, I am of the view that the Applicant’s intended application for judicial review of the Board’s decision is reasonably arguable, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

19.Accordingly, I grant leave to the Applicant to apply for judicial review of the Board’s decision on the ground that the Board failed to properly assess and determine the Applicant’s claim of fear of harm from the Nigerian authorities for being a member of or involvement in IPOB, and if it did that it failed to make its findings on such claim or to give any or sufficient reasons for rejecting the claim; and that the Applicant shall file and issue the originating summons and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

Dated the 26^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