Azubuine Solomon Kingsley v. Director of Immigration

HCAL 1218/2023

[2023] HKCFI 3160

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1218 OF 2023

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 counsel for 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 5 of the RHC (Cap 4A);

3.  The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Director of Immigration as respondent.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 5 July 2023 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous torture claim and non-refoulement claim had been rejected by both the Director and the Torture Claims Appeal Board (“the Board”) under the Unified Screening Mechanism (“USM”) on all applicable grounds.

2.The Applicant is a 52-year-old national of Nigeria who first arrived in Hong Kong on 4 September 2010 under a different identity as a visitor with permission to remain as such until 25 September 2010 when he did not depart and instead overstayed, and was arrested by police on 25 January 2011. After he was referred to the Immigration Department for investigation, he revealed his true identity and raised a torture claim on the basis that if he returned to Nigeria he would be harmed or killed by the villagers of a neighbouring village over some land dispute in his home village and/or persecuted by the Nigerian government and authority due to his Igbo ethnicity and suspected support or involvement in the separatist/secession groups Indigenous People of Biafra (“IPOB”) and Movement for the Actualization of Sovereign State of Biafra (“MASSOB”) which pushed for the restoration of the defunct Republic of Biafra for the Igbo ethnic people but which are considered as terrorist groups by the Nigerian government, and after his torture claim was rejected, he then sought non-refoulement protection on the same bases.

Previous Non-Refoulement Claim

3.The Applicant was born an ethnic Igbo and raised as a Christian in Okija, Anambra State, Nigeria where his grandfather owned some farmland but which had been disputed by the villagers of the adjacent village (“Hostile Village”) over their ownership for years even before the Applicant was born.

4.After leaving school the Applicant worked as a farmer on the farmland which his father had by then inherited from his grandfather but which were still being disputed by those villagers of the Hostile Village then headed by a member of the armed vigilante group The Bakassi Boys established by the Nigerian government to help fight crimes and to keep various ethnic groups under control.

5.Over the years of such dispute some of the Applicant’s siblings and relatives had been poisoned and killed by villagers of the Hostile Village but no arrests had ever been made by the police due to lack of evidence, and in order to stay away from the dispute, the Applicant in 1992 went to Lagos to run his own clothing business, but the dispute continued and also led to the murder of his mother who was shot on the street in 1994 by people suspected to be from the Hostile Village.

6.In 2004 the Applicant closed down his business in Lagos and returned to his home village, but on the first night of his return he was attacked by some masked men who entered his home by force and beat him with metal bars that he lost consciousness and was later taken to the local hospital and then transferred to the state hospital in Lagos due to his severe head injury sustained from the attack, with an operation performed on his skull to release the pressure, and although he was subsequently discharged from the Lagos hospital after 5 months of hospitalization and returned to his home village, the left side of his body was paralyzed for the next 3 years, and eventually after his body had regained its movement in 2007, the Applicant returned to Lagos to avoid any further attack in his home village .

7.Still the threats from the Hostile Village had persisted, and the Applicant decided for his own safety to leave Nigeria. With the assistance of his brother, the Applicant obtained a passport with a different identity and departed Nigeria on 4 September 2010 for Hong Kong where he subsequently overstayed, and upon his arrest by the police he raised a torture claim with the Immigration Department, and after it was rejected he then sought non-refoulement protection on the same bases as before plus additional fear of harm, oppression or persecution from the Nigerian authorities against Igbo ethnics like him after the police in 2016 cracked down on some peaceful processions by IPOB and MASSOB which support the restoration or establishment of an independent Igbo state in Nigeria.

8.While released on recognizance pending the determination of his claims, the Applicant married a local Hong Kong resident and subsequently fathered their 4 children, and that he had also participated in some IPOB rallies in Hong Kong which led to his claim that he also faced sur place risk of being persecuted and tortured by the Nigerian authorities for his such involvement in what the Nigerian government regarded as terrorist groups, and that after the 2016 crackdown that separatists have since been targeted for extra-judicial killings and severe human rights abuses with impunity in Nigeria.

9.By a Notice of Decision dated 9 May 2017 the Director rejected the Applicant’s previous claim on all the applicable grounds other than risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), including 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”).

10.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 perceived enemies upon his return to as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence that he had been specifically targeted by them given that the land dispute was between his family and the Hostile Village long before he was born and that in any event it was a private land dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to, that there was also no evidence that he had ever been targeted by the Nigerian authorities due to his Igbo ethnicity or of him having any involvement in IPOB that it is not accepted that he would face any risk of harm from the Nigerian government, 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 186 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 part of the country away from his home district in large cities such as Lagos where he had stayed before without incidents and where it would be difficult if not impossible for anyone to locate him.

11.On 18 May 2017 the Applicant lodged an appeal to the Board against the Director’s decision, and for which he attended 3 oral hearings in 2018 with his lawyer from DLS before the Board during which he gave evidence and answered questions raised of his claim and with submissions made by his lawyer on his behalf, and on 21 September 2018 his appeal was dismissed by the Board which also confirmed the Director’s decision.

12.In its decision the Board found the Applicant frequently hostile, combative and evasive as a witness during the oral hearings and whose evidence overall was vague and lacking in details and context frequently with convoluted answers to straightforward questions, that there were material inconsistencies discrepancies and implausibility in his account of events and the information provided by him in his Torture Claim Form (“TCF”) and the Supplementary Claim Form (“SCF”) from those given to the Board that it doubted the credibility of his claim, which was further undermined by his use of a false passport to enter Hong Kong and subsequent failure to raise his claim upon arrival until some 4 months later after his arrest by the police, and concluded that his claims were just a series of bare assertions unsupported by any reliable objective evidence that it rejected his claims as not credible and not satisfied that he would be at risk of harm from his neighbouring villagers or The Bakassi Boys or the Nigerian authorities due to his Christian religion or his Igbo ethnicity or any involvement in IPOB in Nigeria or that he had engaged in or actively supported any pro-Biafra secessionist movements in Nigeria, while he may have joined the IPOB in Hong Kong as an ordinary member and participated in some low level IPOB activities here but which were suspected to have been engineered by him with the deliberate intention of bolstering his non-refoulement claim that it is not accepted that he would be at risk of harm or persecution by the Nigerian Government if returned to his home country.

13.The Applicant’s application for leave to apply for judicial review of the Board’s decision was also refused by Deputy High Court Judge P Li on 27 April 2021 upon finding none of the proposed grounds for his intended challenge reasonably arguable, that there was no error of law or procedural unfairness in his process before the Board or in its decision, and that there was no prospect of success in his intended application (HCAL 2865/2018 [2021] HKCFI 1116).

14.On 10 May 2021 the Applicant in person filed an appeal against the Learned Judge’s decision which was supplemented by a Supplementary Notice of Appeal filed by his lawyer on 30 June 2021, and on 26 July 2021 he issued a summons for leave to adduce new evidence in support of his appeal, namely 4 medical reports dated between 20 October 2020 and 15 July 2021 that were not available before the Board to show that he was suffering from cognitive impairment thereby materially affected his evidence given before the Board in particular his inability to give consistent and accurate reports of events or to provide all relevant information in support of his claim, and 2 items of COI dated earlier in 2016 and 2017 to show that the Nigerian Government has been using cyber-surveillance technology to target and track political activists and dissidents but which the Board had failed to take into account or adequately in its consideration and assessment of the risk emanating from the Applicant’s association with and membership of the IPOB.

15.This application was refused by the Court of Appeal on 21 December 2021 upon finding that the first 2 requirements in Ladd v Marshall [1954] 1 WLR 1489 were not satisfied as regard the medical reports in that such evidence of the Applicant’s mental condition at the time of his appeal before the Board could have been obtained with reasonable diligence for use in the subsequent judicial review proceedings, and that these medical reports do not show the degree of the Applicant’s cognitive impairment (if any) at the time of the hearing before the Board or that his cognitive repairmen was a significant contributing factor for his demeanor, the consistency of his evidence , or the implausibility of his case, while the second Ladd v Marshall requirement was also not satisfied as regard the proposed COI as they failed to address the Board’s rejection of the Applicant’s claim that he became an IPOB member before he left Nigeria or the Board’s finding that his involvement in IPOB in Hong Kong was not based on any genuine interest but rather engineered by him with the intention of bolstering his non-refoulement claim (CACV 231/ 2021 [2021] HKCA 1940).

16.The Applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against this decision of the Court of Appeal refusing to allow him to adduce new evidence in support of his appeal was dismissed by the Court of Appeal on 15 July 2022 ([2022] HKCA 860), while his appeal against DHCJ P Li’s refusal to grant leave to apply for judicial review was subsequently also dismissed by the Court of Appeal on 20 September 2022 ([2022] HKCA 1364).

Request To Make Subsequent Claim

17.On 3 March 2023 the Applicant in writing to the Immigration Department requested to make a subsequent claim on the following bases:

(a)  New medical evidence of the deterioration of his mental and physical disabilities;

(b)  Medical evidence of various medical issues and disabilities of his children thereby affecting their safety, right to life, and best interests;

(c)  There are systemic oppression and discrimination against the Igbo across Nigeria; and

(d)  That the poor economic situation in Nigeria would affect the relocation of the Applicant and his family to his home country.

18.There are however constraints on a claimant who has previously made a non-refoulement claim to make a subsequent claim, as stipulated by Section 37ZO of the Immigration Ordinance as follows:

“(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that –

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3) In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.

(4) If an immigration officer decides that a person may make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision.

(5) If an immigration officer decides that a person may not make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision, and the notice must also include the reasons for the decision.”

19.Accordingly, on 9 March 2023 the Director required the Applicant to provide further information and evidence in writing in support of his request within 14 days, which he subsequently did via his lawyer from Duty Lawyer Service (“DLS”).

20.The information and evidence provided by the Applicant through his lawyer (as exhibited to the 1^st Affirmation of Patricia Ann Ho filed in these proceedings) in support of his request included the following:

(a)  New medical evidence that the Applicant’s head injury sustained in the attack in 2004 in Nigeria has long lasting detrimental effects on him including significant issues over his memory and cognitive functions which may explain the ways that he gave evidence and information in support of his previous claim to the Director and the Board that put their prior findings on his credibility and their assessments of internal relocation as a viable option in his previous claim into doubt and that his non-refoulement claim based on his fear of harm from the Nigerian authorities over his involvement in IPOB should be reconsidered and re-evaluated by both the Director and the Board under the applicable grounds by way of a subsequent claim;

(b)  New medical evidence that his children born in Hong Kong, a 3-year old son and 8-month old triplets all have serious medical and mental disabilities that they risk being deprived of the necessary medical care if they are to be relocated to Nigeria with the Applicant or to remain in Hong Kong without their father; and

(c)  New relevant COI showing lack of or inadequate medical and mental health care for the Applicant in Nigeria and/or for his children if his family were to relocate with him, that the economic situation in Nigeria is worsening that he and/or his family would have difficulty to cope or survive, that there is ineffective banking service in Nigeria for his wife to provide financial assistance to him from Hong Kong if necessary, and that the Nigerian authorities have continued to oppress arrest and prosecute IPOB members and individuals involved or suspected to be involved in IPOB that would put the Applicant at risk due to his past involvement in Nigeria and his participation in IPOB rallies in Hong Kong of which the Nigerian government would have the technologies to track and identify him as a potential threats to Nigeria.

Director’s Refusal of Request for Subsequent Claim

21.There was no screening interview held for the Applicant before an immigration officer, and by a Notice of Decision dated 5 July 2023 the Director refused to allow him to make a subsequent claim upon finding that the basis thereof was essentially the same as that of his previous claim, and that he failed to provide sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since his previous claim was determined, or that those changes when taken together with the material previously submitted in support of his previous claim would give his subsequent claim any realistic prospect of success.

Application for Leave to Apply for Judicial Review

22.On 7 July 2023 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, and as amended on 15 August 2023 by his lawyer to put forward the following proposed grounds for his intended challenge:

(1)  That the Director unreasonably failed to consider or consider properly new medical evidence showing that the Applicant suffers memory and cognitive problems which explains the inconsistent testimony he gave to the Board in his previous claim;

(2)  That the Director failed to properly consider how these evidence would affect the subsequent claim before the Board had the Applicant’s request been allowed to do so, and instead indulged in irrational lines of reasoning in relying on the Board’s 2018 decision on the Applicant’s previous claim; and

(3)  That the Director erred in law or was irrational or acted contrary to high standards of fairness in relying on the Board’s previous credibility findings without considering the new medical evidence or giving the Applicant an opportunity by screening interview to properly explain his situation or make his full representations before an immigration officer.

23.Given the common basis apparent in these grounds for the Applicant’s challenge of the Director’s decision in failing to consider properly the new medical evidence as to his memory and cognitive problems which his counsel Mr Josh Baker argues would explain the inconsistent testimony given to the Board in his previous claim of his involvement in IPOB, of which I will no doubt go into more details in Mr Baker’s Skeleton Argument later in this decision, it is relevant to first refer to those findings of the Board in its previous decision dated 21 September 2018 as regard the Applicant’s alleged involvement in IPOB in more details, starting perhaps with the manner in which the Applicant was found to have given his testimony:

“138. Though not an exhaustive list, after assessing the evidence against the following indicators of credibility, the Board finds the following serious problems with the Appellant’s account.

139. The Appellant presented as a witness who was frequently hostile, combative and evasive and whose evidence overall was vague and lacking in appropriate details and context. He also provided convoluted answers to straightforward questions. By way of example, when asked, “In Nigeria, did you join any organization that promoted independence for the Igbo?” he responded, “Yes and No. Yes, in the sense that my father fought in the first war for Biafran independence. No, in the sense that I mentioned earlier. When I left Nigeria these atrocities did not rise to this level. With the increase in these atrocities, so people asked more for independence. And, when he was asked, “When you filled in your SCF, were you a member of the IPOB?” he responded, “My answer is Yes and No. Yes, by default. Every Igbo man is by default an IPOB member. No, when I completed the form I had not formally registered.”

140. In particular, his evidence was remarkable for his last minute disclosure of his alleged IPOB membership and multiple material inconsistencies that emerged in his account of that matter over time.”

24.The Adjudicator proceeded to find the Applicant to have failed to give a satisfactory explanation for his failure to disclose his alleged involvement in IPOB at the first reasonable opportunity when he raised his claim:

“144. When he was asked why he had previously failed to disclose his claim that he had attended events in Nigeria advocating secession for Biafra, he responded “I may have omitted mentioning certain things because I had other personal problems that were weighing me down, so some things I decided to let go – not that they were not important.”

145. And, when the Board discussed with him his claim that he made for the first time on the final day of his appeal hearing that in fact he had been a long term member of the IPOB in Nigeria and asked him why he had not disclosed such critical information until the final stage of his appeal, he said that when he arrived in Hong Kong he was “devastated” and there were many things he couldn’t recall then that had just flashed back into his memory. When asked if he had forgotten all about his membership of the IPOB in Nigeria during the intervening years he responded, “It’s not that I forgot all about the IPOB. Initially, immigration asked me why I came to Hong Kong. They didn’t ask me about my role and why I am afraid to go back to Nigeria.”

25.Critically the Board found the Applicant’s explanations for his last minute disclosure of such highly relevant and critical information not credible, that his failure to disclose this critical information at the first reasonable opportunity for which he provided no reasonable and credible excuse was a factor which seriously damaged his credibility, and having assessed his evidence in the round, and in view of the constellation of the serious problems with his such evidence as highlighted, the Board concluded that it was not persuaded that the material events and the conditions that the Applicant described in Nigeria upon which his claim was based were factually accurate, and with the possible exception of his sur place activities in Hong Kong since 2016, the Board found the Applicant’s evidence lacking in credibility in its totality and not even the center piece of his claims could be regarded as reliable.

26.As for the Applicant’s sur place claim of having participated in IPOB rallies in Hong Kong and that he fears of being discovered and identified by the Nigerian government as a IPOB activist and therefore faces risk of being harmed or killed if refouled to Nigeria, the Board found that the Applicant may have joined IPOB in Hong Kong as an ordinary member and may have participated in low level IPOB activities here but that his such involvements in IPOB were not based on any genuine interest and involvement in the cause of IPOB but rather engineered by him with the deliberate intention of bolstering his claim, as it stated as follows:

“187. The Appellant produced photographs in support of his claim to have joined IPOB in Hong Kong. The photographs purport to show him and his wife in attendance at a public rally in support of IPOB in Hong Kong on 30 May 2017. In them the Appellant and his wife are wearing what appear to be IPOB t-shirts and his wife carried an IPOB placard. Although not prepare to go so far as to conclude that it is true, based on those photographs and his supporting testimony, to which the Board is prepared to attach some credence, the Board is prepared to accept the possibility that the Appellant may have joined the IPOB in Hong Kong as an ordinary member in or about October 2016 and may also have participated in low level IPOB activities there, as he claims. However, based on the totality of the evidence, the Board finds that his interest and involvement in the IPOB in Hong Kong, if any, is not based on any genuine interest and involvement in the cause of IPOB but rather has been engineered by him with the deliberate intention of bolstering his non-refoulement claim.

188. Given these findings, in particular the Board’s findings as to the lack of authenticity of the Appellant’s interest and involvement in the IPOB in Hong Kong, the Board rejects his claim that he would be likely to engage in IPOB activities on his return to Nigeria.

189. By his own account, the Appellant was only ever a low level member of the IPOB in Hong Kong, and he does not hold a leadership position. By his own account, the photographs that he claims show him and his wife attending a pro-IPOB rally in Hong Kong have never been disseminated. There is no evidence he will be identified by the Nigerian authorities as a prominent IPOB activist in Hong Kong on his return to Nigeria. Furthermore, there is no evidence that the Nigerian government targets for serious ill-treatment ordinary IPOB members returning from abroad, on account of their activities there.”

27.The Board therefore rejected the Applicant’s claim that as an IPOB activist he will be at risk of harm from the government of Nigeria should he return to Nigeria, as it did not accept that he had ever engaged in activities on behalf of the IPOB before he left Nigeria for Hong Kong, or that he would engage in them upon his return there or that he would be identified as an IPOB member because of his activities in Hong Kong, and concluded that it was not persuaded that there is any real risk that he will face any harm ill-treatment or persecution under any of the applicable grounds if he is refouled to Nigeria. ([191] – [205] of the Board’s decision).

28.In the Director’s Decision of 5 July 2023 to refuse the Applicant’s request to make a subsequent claim, while having identified the core of the Applicant’s case based on new medical evidence to explain the inconsistencies found by the Board that led to the rejection of his previous claim on credibility, the immigration officer was not satisfied that those new medical evidence would constitute a significant change of circumstances that would warrant the making of the Applicant’s subsequent claim by essentially relying on the same findings by the Board on credibility in his previous claim, as it was stated in [15] of the Decision:

“It is noted that you reiterated your head injury caused in the attack in 2004 and submitted the previous evidence as well as current medical documents to prove that you suffered from significant memory loss and therefore resulting your past inconsistencies in testimony in your previous claim (see paragraphs … above). Yet, it is found that you were indeed given opportunities to explain your discrepancies during the hearings with the Board and even you were legally represented at the stage of appeal. The Board had discussed with you about why you had not disclosed the critical information of your long-term member of the IPOB in Nigeria but until your final stage of appeal. You said that when you arrived in Hong Kong you were “devastated” and there were many things you couldn’t recall then that had just flashed back into your memory. In view of your explanation, the Board had carefully and thoroughly considered that “Even applicants with a genuine fear of persecution may not present as models of consistency or transparent veracity” (Rajalingam) and making due allowance for possible difficulties with memory arising from emotional trauma when you first arrived in Hong Kong and/or possible ongoing mental health issues afterwards (you told the Board that you suffered from Bipolar disorder)” (… of TCAB Decision 2018). It appears that your past inconsistencies in testimony in your previous claim had already been discussed and considered by the Board. In addition, the Board found that different issues arose in the assessment of different parts of your claims. Throughout the Board’s considerations, it had borne in mind the possibility that you might not have confined your account to the plain, unvarnished truth but might have exaggerated or invented part(s) of your story, itself that exaggeration or even untruthfulness intact. Before arriving at its final conclusions, the Board had considered whether there might be mitigating reasons, including difficulties with memory, physical and mental or emotional trauma, fear and/or mistrust of authorities, for any deficiencies in your evidence (see …). Thus, the Board had expressly gave due allowance for your possible difficulties such as memory loss, mental or physical health issues before making the final decision in your previous claim. As such, it is considered that your current allegation does not constitute any significant change of circumstances of warranting your making of a subsequent claim. In any event, your fear of being a member of IPOB will be further discussed in later parts.”

29.While the immigration officer did, as he so stated, proceed to consider the new medical evidence as regard the Applicant’s claim of involvement in IPOB, it appears that he still heavily relied on the previous findings by the Board instead of making his own assessment of the Applicant’s credibility and/or any realistic prospect of success of his proposed subsequent claim based on such new evidence, as it was stated at [26] of the Decision:

“In your Request, it is observed that you reiterated your problem of being an IPOB member as well as your participation of IPOB rally in Hong Kong on 30 May 2017. You also claimed that you had attended more than six IPOB meetings in Hong Kong (see …), however, it is your bare assertion without any objective information to support. In fact, in your previous claim, the Board found that in both your TCF and SCF, you stated explicitly that neither you nor any of your family members ever belonged to or were associated with any organizations or groups in Nigeria that were relevant to your claim. You told the Board that although, as an Igbo man, you were sympathetic to the cause of a separate Biafran State for the Igbo people, you had never belonged to or supported any group in Nigeria that had done so. However, on the final day of your appeal hearing you provided completely contradictory testimony to the Board. You then told the Board that in fact you had attended events in Nigeria in support of secession for Biafra (see ...). You told the Board that you joined the IPOB in Nigeria after you left school there and that you became an IPOB courier in about 2000 or 2001. The Board found it was inconsistent with the objective COI that the IPOB did not emerge until 2012, i.e. after you left Nigeria (see …). In your Request, you also claimed that your cognitive disability resulting your memory problem, and therefore you were not able to remember certain dates, such as your own date of birth and the date you joined the IPOB (see …). As discussed in paragraph 15 above, your past inconsistencies in testimony in your previous claim had already been discussed and considered by the Board. In addition, in your previous claim, the Board had considered to accept the possibility that you might have joined the IPOB in Hong Kong as an ordinary member in or about October 2016 and might also have participated in low level IPOB activities there, as you claimed. However, based on the totality of the evidence, the Board found that your interest and involvement in the IPOB in Hong Kong, if any, was not based on any genuine interest and involvement in the cause of IPOB but rather had been engineered by you with the deliberate intention of bolstering your non-refoulement claim (see …). Thus, it is considered that you are re-litigating your original claim in your Request as you rely upon the same facts of your previous claim.”

30.As for the other additional information submitted by the Applicant, such as various video clips of his alleged involvement in IPOB activities in Hong Kong and relevant COI on the Nigerian government’s oppression and persecution of IPOB activists, the immigration officer similarly relied on the previous findings of the Board at [30]:

“To discuss the video clips from YouTube, it is also considered with the COI your duty lawyer quoted. Your duty lawyer claimed that the latest COI of being a IPOB member with IPOB activity history is the target of violence in Nigeria (see …), the only COI quoted was extracted from the “Country Policy and Information Note Nigeria: Biafran separatists (April 2020)” from the UK Home Office states in §6.7.5 that “… country wide patterns of violence … are claiming the lives … in the context of … the repression of the IPOB … individuals, communities and associations actively targeted for what they may have done decades ago, or for what they may do or may become, rather than for what they are doing or have done (e.g. members of the IMN, IPOB)” (see …). Indeed, having considered the COI in your previous claim, the Board commented that “The COI does not indicate that the Nigerian government is targeting all Igbos or inhabitants of the east or south east of Nigeria as imputed separatists.” (§118 of the TCAB Decision) and “The COI does not indicate that the Nigerian government is actively engaged in monitoring the activities of IPOB groups outside Nigeria, nor is there any evidence that Nigerians returning from abroad are being targeted in Nigeria for involvement in IPOB activities, other than in high profile cases.” (§119 of TCAB Decision). Besides, the latest COI of “Country Policy and Information Note Nigeria: Separatist groups in the South-East (March 2022)” from the UK Home Office states in §10.5.11 that, “No further information was found in the sources consulted of the Nigerian authorities monitoring the online or physical activities of the diaspora in UK.” In other words, same findings of the Board in your previous claim, there is a lack of evidence to show that the Nigerian government is actively engaged in monitoring the activities of IPOB groups outside Nigeria, nor is there any evidence that Nigerians returning from abroad are being targeted in Nigeria for involvement in IPOB activities.”

31.The immigration officer concluded that the Applicant was relying principally on the same facts of his original claim for his request while similar evidence had already been examined by the Board and was rejected, and that given his alleged fear of being either Igbo or an IPOB member had been submitted and thoroughly considered in his previous claim which was not accepted as substantiated, it was considered that his alleged risk of harm of being either Igbo or IPOB member did not amount to a significant change of circumstances of his case that warranted making of a subsequent claim ([32] of Decision).

32.Mr Baker submits for the Applicant that such reasoning in the Director’s decision are unsustainable as the immigration officer should not have just relied on the Board’s previous findings on the Applicant’s credibility, and instead should have asked himself how the new evidence would affect the Applicant’s credibility and prospect of success of his subsequent claim.

33.Mr Baker also submits that in reasoning that there is no significant change in circumstances, the immigration officer wrongly and irrationally equated the Applicant’s own evidence that he suffered mental health problem given orally to the Board in his previous claim with the new evidence authored by independent doctors which are fundamentally different in nature and consequence.

34.Mr Baker further submits that in reasoning that the Board’s view in its 2018 decision should stand, the immigration officer completely ignored the new medical evidence and what effect it might have on a subsequent claim before the Board, which is the very material that the immigration officer was tasked with evaluating but failed to do so or properly, and which is unreasonable and unfair to the Applicant who ought to have had the effect of the new evidence on the chances of success considered, and as such the immigration officer did not appear to have applied anxious scrutiny to the subsequent claim at all when he refused the Applicant’s request to make such a claim.

35.Mr Baker argues that these failures were highly material to the acceptance or refusal of the subsequent claim since if the Board were to consider the Applicant’s subsequent claim, with the benefit of the new medical evidence, it is likely that it would act differently, as on any view the new medical evidence would be given more weight than the Applicant’s own evidence, that the Board would consider whether the Applicant’s inconsistent testimony and other credibility problems were explained, wholly or partly, by his cognitive and memory problems, and that the Board may call for further medical examination pursuant to The Practice Guide and Procedural Guide of the Administration Non-Refoulement Petition Scheme (2019), and if the medical evidence were accepted, the Board would then make clear and measurable allowances for its effect on the Applicant’s testimony and would not repeat its vague reference to the ‘possibility’ of mental health problems and ‘due allowance’, and that it may apply the benefit of doubt to the Applicant’s claim of alleged involvement in IPOB.

36.As such, Mr Baker submits that in refusing the Applicant’s request, the Director has failed to consider all of these fairly obvious and trite prospects that arise from the medical evidence, and has thus unreasonably deprived the Applicant of a decision by both the Director and the Board in anxiously scrutinizing his subsequent claim under all the applicable grounds in a 2-tier system under USM that the Director’s refusal of his request is therefore unreasonable in the public law and should be quashed.

37.While the Director was of course entitled to take into account the findings of the Board in the previous claim in deciding whether to allow the Applicant’s request to make a subsequent claim and to adopt measures such as applying robustly those administrative constraints under Section 37ZO (2) of the Ordinance as noted in [18] above, but with the new medical evidence, including those prepared by doctors of the Hospital Authority, in support of the Applicant’s request, which have all been acknowledged and summarized by the immigration officer in [11.12] of the Decision showing, inter alia, severe stress and depression ([f]), progressive deterioration in memory and concentration([j]), progressive cognitive problems ([k]), all said to be linked to the previous trauma suffered by the Applicant from his head injury sustained in 2004 in Nigeria, and which appear to be fundamentally different to those that were before the Board in 2018, but which the immigration officer appeared to have essentially just relied on the previous findings of the Board without making his own assessment as to whether the new medical evidence could satisfactorily explain or resolve those credibility issues raised by the Board in the previous claim, or to allow him to make his request so that his subsequent claim could be properly and fully determined by both the Director and the Board by the 2-tier screening processes under the USM.

38.At this stage perhaps it would suffice just to refer to what the immigration officer recorded of the new medical evidence in the Director’s Decision at [11.12] to highlight the Applicant’s points:

“(n) It is therefore reasonably arguable that the new medical evidence puts the prior immigration findings into doubt. The medical report above is from 2021. This is 17 years after the assault on you. The new medical evidence therefore highlights the severity of your injuries which have had a long-lasting detrimental effect on you. Substantiated by the above evidence, it is clear that you suffer from significant memory loss. It therefore seems unsurprising that you were not able to remember certain dates, such as your own date of birth and the date of you joined the IPOB.

(o) To conclude, your past inconsistencies in testimony which have been an issue in certifying your credibility could now be explained by your memory issues, evidenced by the medical explanation above. This medical evidence puts into doubt the findings of the ImmD and therefore the ImmD should reconsider whether it is safe to arrive at the conclusion that you are to be unsuccessful in your non-refoulement claim.

(p) Removing the issue of credibility, there should be greater weight placed on the fact that you did suffer from injuries. Further and in addition to the aforementioned injuries, other new significant developments have arisen as further elaborated below.”

39.In the premises, and so far as application for leave is concerned, the test is one of reasonable arguability which is not a particularly high threshold, I am of the view that the Applicant’s intended application for judicial review of the Director’s decision is reasonably arguable on his proposed grounds as stated, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

40.Accordingly, I grant leave to the Applicant to apply for judicial review of the Director’s decision, and direct that he shall file and issue the originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Director as respondent.

Dated the 7^th day of December 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