Case Document

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HCAL 1117/2020

[2024] HKCFI 367

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1117 OF 2020

BETWEEN
	Fidelis Abanobi Fac	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 53-year-old national of Nigeria who arrived in Hong Kong on 19 April 2018 as a visitor with permission to remain as such up to 3 May 2018 when he did not depart and instead overstayed, and on 11 May 2018 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 Muslim extremist militants including Fulani Herdsmen and Militia Bandits for being a Christian. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Abuja, Nigeria as a Christian by his Christian parents. After leaving school with a Bachelor of Business Management, he got married and raised a family with 2 children by running his own electronics trading business in Lagos.

3.One day in January 2018 while visiting his parents in his home village in Abuja, a group of armed Fulani Herdsmen and Militia Bandits stormed the village and attacked the villagers, and while the Applicant managed to make his escape unharmed to a neighbouring village, many of the villagers including his parents were killed.

4.After burying his parents the Applicant returned to his home in Lagos to tend to his business, but when he later heard the news of further similar attacks of Christians by Fulani Herdsmen and Militia Bandits in other parts of the country, he felt it was no longer safe as a Christian to remain in Nigeria, and so he arranged for his wife and children to move to reside in Anambra State, and on 19 April 2018 he departed Nigeria for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 15 November 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 27 December 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”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that his claimed future risk of being harmed or killed by the Fulani Herdsmen or Militia Bandits upon his return to Nigeria is real and foreseeable due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of the Applicant being specifically targeted by any of them for harm, that in any event these militants are considered as terrorists by the Nigerian government that state protection would be available to the Applicant if resorted to, 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 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 and from areas where these terrorists are active and in large cities such as Lagos where he had lived for years without incidents and where it would be difficult if not impossible for anyone to locate him.

7.On 8 January 2019 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 25 June 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 15 May 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board accepted the Applicant’s claim of the attacks of his home village and the killing of his parents by those Muslim militant terrorists that caused him to fear of similar attacks by them for being a Christian, but found no evidence that he had been specifically targeted for harm as such upon his return to Nigeria where his wife and children are still residing without any incident, and as these militant groups are regarded as terrorists by the Nigerian government that state protection would be available to the Applicant as needed as well as reasonable internal relocation for him to move safely to other part of the country away from places where those terrorists are active and without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

9.On 8 June 2020 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 affidavit of the same date. 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.

10.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.

11.In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their decisions that the risk of harm in his 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 recently filed an affidavit requesting to withdraw his application as he has been granted a dependent visa to stay in Hong Kong but without providing any further details or documentary evidence to corroborate his assertion..

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 to withdraw his application, I accordingly dismiss his leave application.

Dated the 1^st day of February 2024

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 1 February 2024 Fidelis Abanobi Fac Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 1 February 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 15208/19/81/NI287 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 4549/18 (formerly RBCZ 10772/18) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)