Olisa Ejike Cletus v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1168/2019

[2023] HKCFI 2894

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1168 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 29 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 31 July 2016 and was permitted to stay until 7 August 2016. He did not depart and had overstayed since 8 August 2016. On 10 August 2016, he was arrested by the police. On 19 December 2016, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by the Nigerian police, and/or unknown men sent by the Lagos municipality government (“LMG”), and/or the members of Islamic Religious Group (“IRG”) and the Boko Haram.

5.According to the applicant, in his secondary school, he became the leader of the young branch of IRG and was responsible for the administrative duties of the local mosque. Before 2008, he inherited a piece of land from his father. The land was for commercial use and worth around 1 million USD. In around 2008, the LMG intended to take the applicant’s land as they discovered oil. The negotiation about appropriate compensations all failed. The applicant and his family took the case to court and the court found in favor of the applicant. Yet, the LMG did not comply with the court order.

6.Later, when the applicant and his father went to their land, there were unknown workers. The unknown workers attacked the applicant and his father. He also suspected that there were assailants looking for him. After the attack, the applicant gathered some friends, who attacked the government workers and killed two of them. Thereafter, the applicant avoided another ambush from some unknown men.

7.After the government learnt about the death of the workers, they became harsher on the applicant. In this circumstance, the applicant resorted to hide in different friends’ places. He did not encounter any problems before he went to South African in 2009.

8.Between around 2010 to 2011, the applicant heard that the government were looking for him. They visited the applicant’s father, arrested him and attacked him. The applicant was told by his mother that his father died during police custody between 2011 and 2012. The police also arrested three of his father’s relatives but later released them.

9.On 24 December 2015, the applicant sneaked back to attend his father’s funeral. In order for his father to undergo a Christian funeral, the applicant and his mother had to profess that both of them were Christians. In January 2016, his uncle’s church was destroyed by the IRG members who he believed to destroy the church afterwards.

10.During his father’s funeral, some IRG members caused a chaotic scene and accused the applicant of denouncing the Muslim faith. While the applicant escaped, he believed that the police were searching for him. The applicant attempted to report this attack to the police but the police was connected with the IRG.

11.Meanwhile, one day in 2016, the applicant claimed to be kidnapped by some unknown men and was tortured on the spot. He was detained for three days and were subject to torture for ten times a day. He was also deprived of water and food. On the last day, the applicant was rescued by two hunters. Thereafter, the applicant returned to South Africa.

12.In February 2016, he was discovered by some Muslim agents in South Africa. He was also intercepted by some Muslims. While he was able to escape, he was afraid that they would eventually locate him. Out of fear, he fled to Hong Kong for protection. Meanwhile, he learnt that his family were killed by the members of Boko Haram. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 7 August 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

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

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);

(b)  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”);

(c)  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

(d)  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”).

14.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13]; (ii) state protection would be available to him [14]; and (iii) internal relocation was a viable option [15]-[16].

The Board’s Decision

15.The applicant appealed the Director’s Decision to the Board. On 19 February 2019, the Board conducted an oral hearing for his appeal, during which he testified with the assistance of an interpreter of Igbo and English languages [33].

16.Having considered the applicant’s claim and his oral testimonies [8]-[44], the Board found that the applicant was not a witness of truth [46]. In particular, the Board found that the applicant’s evidence about his religion was confusing and inconsistent and concluded that his claim as a converted Christian was fabricated [47]-[50]. As a result, the Board refused to accept the applicant’s claimed risk of harm from the IRG members due to his change of religion [51]-[52]. Meanwhile, the Board found that the applicant’s claim about the confiscated land was also contradictory and thus rejected his claimed land dispute with the LMG [53]-[57].

17.Insofar as the alleged threats from the Boko Haram, the Board accepted that the country of origin information (“COI”) did support the violent nature of Boko Haram and the security concerns the group posed in Nigeria [58]. However, there was no evidence that Boko Haram targeted Igbo due to their ethnicity nor was there evidence that they adversely targeted Christians [59]. Due to the lack of evidence and the applicant’s failure to provide the details of the group’s attack against his family members, the Board rejected that he would be subjected any risk of harm from the Boko Haram [60]-[61].

18.In addition, the Board rejected the applicant’s claim on the recent election violence [62]-[63] and his claimed risk of harm in relation to Biafran [64]-[67].

19.As a result, as the applicant’s claim was not substantiated, the Board rejected his claim and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

20.The applicant has filed Form 86 dated 2 May 2019 for leave to apply for judicial review of the Board’s Decision.

21.In his affidavit in support of his application, the applicant said his life is in danger as at the date the Muslims in Nigeria are still killing Christians and the Board’s Decision should be reviewed.

DISCUSSION

22.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).

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

24.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.”

25.The Board had, for the reasons given in the Board’s Decision, rejected the applicant’s evidence on the facts of his claim. Having considered those reasons, the Court takes the view that the Board was entitled to form such views. The applicant has not been able to raise any valid reason to challenge the Board’s Decision.

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

CONCLUSION

27.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 21^st day of November 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