Alkassoum Ibrahim v. Director of Immigration

HCAL 616/2024

[2024] HKCFI 1823

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 616 OF 2024

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
	cconsideration 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 5 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 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 19 January 2024 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous 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 Niger where he was born but had been a resident of Nigeria since the age of 10 years old, and last arrived in Hong Kong on 15 February 2012 as a visitor with permission to remain as such up to 18 February 2012 when he did not depart and instead overstayed, and was arrested by police on 8 March 2012. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim for protection on the basis that if he returned to Niger he would be harmed or killed by his uncle over their land dispute in Niger.

Previous Non-Refoulement Claim  

3.The Applicant was born in Bouza, Niger, and after his parents passed away when he was still a small child, but due to threats from his uncle trying to steal his father’s house, the Applicant at around the age of 10 left Niger for neighbouring Nigeria to look for his friend in Lagos, and when he was unable to find his friend and was loitering in the streets of Lagos, he was taken in by a businessman by the name of Mr Goodwin who gave him food and shelter, and later adopted him as his son and supported his living and put him through secondary school in Lagos, and after leaving school the Applicant was also allowed to assist in the running of Mr Goodwin’s handbag shop in Lagos, including making business trips to China and Hong Kong.

4.One day in mid-2009 the Applicant was informed by a friend that some men from Niger had come looking for him in Nigeria, and as he suspected that they were sent by his uncle to kill him over their land dispute, and so he departed Nigeria for China, and in his last trip from China to Hong Kong on 15 February 2012 he overstayed and subsequently raised his non-refoulement claim for protection.          

5.By a Notice of Decision dated 29 November 2016 the 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 assessed the level of risk of harm from his uncle upon his return to Niger as low due to the absence of or low intensity and frequency of past ill-treatment from his uncle, that his problem with his uncle was a private land dispute between the 2 of them only without any official involvement that state or police 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 Niger with a large population of 18 million people spread across a vast territory of more than 1.2 million 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 or to remain in Nigeria where he had lived for more than 27 years without incidents and that it would be difficult if not impossible for his uncle to locate him in either countries.

7.The Applicant’s appeal against the Director’s decision was dismissed by the Board on 27 November 2017 after failing to give further evidence or to answer questions raised of his claim, and upon the Board finding no merits in his claim or his appeal, and that it also confirmed the Director’s decision.

8.The Applicant’s late application for leave to apply for judicial review of the Board’s decision was also refused by this Court on 18 September 2020 upon finding no good reason for his significant delay of more than 2 months with the filing of his Form 86, that 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 merits or prospect of success in his intended application (HCAL 789/2018 [2020] HKCFI 2327).

Request To Make Subsequent Claim

9.The Applicant never brought any appeal against the Court’s decision, but some 3 years later on 25 September 2023 while being detained by the Immigration Department at Tai Tam Gap Correctional Institution pending deportation to Niger, he in writing to the Director requested to make a subsequent claim as he has since changed his nationality to Nigeria and that he fears of being harmed or killed if refouled to Nigeria for the following reasons:

(1)  That his uncle has found out that he has moved to Nigeria and has sent men looking for him there with the intention to harm or kill him over their land dispute in Niger;

(2)  That he is bisexual and therefore risks being prosecuted by the Nigerian authorities as homosexual activities are against the law in Nigeria and punishable by lengthy imprisonment, while he also fears of persecutions and discriminations by the Muslim community; and

(3)  That when he was small and under the care of Mr Goodwin in Nigeria he had converted his religion from Islam to Christianity, but given the recent surge of anti-Christians activities in Nigeria by the Muslim population and in particularly extremist Islamic terrorist groups such as Boko Haram aiming to establish an exclusive Islamic state in Nigeria and have murdered thousands of Christians there in recent years that he as a Christian fears of such harm upon his refoulement to Nigeria.    

10.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.”

11.Accordingly, on 7 November 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 by further letters or statements dated 7, 21 and 28 of November 2023 and 8 December 2023, and also attended an interview on 22 December 2023 before an immigration officer at Tai Tam Gap Correctional Institution.  

12.By a Notice of Decision dated 19 January 2024 the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis of risk from his uncle over their land dispute in Niger is 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, while his claimed fear of persecution by the Muslim community for being a bisexual man and/or prosecution by the Nigerian authorities for homosexual activities which are prohibited by law in Nigeria is not accepted as credible in the absence of any reliable evidence that he is bisexual other than his own bare assertion which was further undermined by his failure to mention it at all in his previous claim that it was considered as just a fabrication, and similarly his claimed fear of being harmed or killed for being a Christian convert was never raised in his previous claim that its credibility was also found to be in doubt, and that in any event even if such risk were real that it can be negated or minimized by the Applicant moving to regions with large Christian populations such as the southern parts of Nigeria.

Application for Judicial Review of the Director’s Decision

13.On 18 April 2024 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation filed on the same day in which he just repeated his claim of those risks for his proposed subsequent claim as noted above but without putting forth any proper ground for his intended challenge of the Director’s decision.

14.Nevertheless, given that the Applicant has been under detention without legal representation or assistance, and the seriousness of the issue at hand and the implication of the Director’s refusal to allow his request to make his proposed subsequent claim as regard the risks arising from his alleged sexual orientation and as a Christian in Nigeria which were not raised in his previous claim and thereby denying him of the 2-tiered screening process thereof under the USM, the Court shall adopt an enhanced standard in scrutinizing the Director’s reasons for the refusal.

Discussions

15.The Director’s reasons for disbelieving the Applicant’s claim of being a bisexual man are set out in [20] – [24] of the decision, essentially that it is incredible that having discovered his bisexual orientation at the age of 8 and subsequently being kicked out of his home village for engaging in sexual activities with other boys in the village, that the Applicant then went to Nigeria and stayed there for the next 27 years without any incidents until 2009 when he departed for China and then to Hong Kong in 2012 when he raised his previous claim but without ever mentioning any such fear either to the Director or the Board until now, while he was also unable to provide any reliable evidence or details as regard his bisexual activities during his stay of more than 12 years in Hong Kong that it is not accepted that he is genuinely a bisexual person, and that he has manufactured his claimed fear of persecution or prosecution due to his sexual orientation upon return to Nigeria.

16.As such, and in the absence of any error of law or irrationality or procedural unfairness in his process before the immigration officer or in the Director’s decision being clearly and properly identified by the Applicant, I am satisfied that the Director was entitled to reject this claim of the Applicant as not credible for the given reasons, and upon scrutinizing the decision of the Director, I do not find any reasonably arguable basis to challenge this finding of the immigration officer.

17.The same however may not be said about the Director’s reasons of refusal as regard the Applicant’s claimed risk that he may face upon returning to Nigeria due to his religion of Christianity on the same basis as found by the immigration officer that he failed to raise it in his previous claim, or of the assessment that the Applicant could avoid such risk by moving to other areas of Nigeria where there are large Christian population, as it was so stated in the decision as follows:

“25. Regarding your fear of harm from Nigerian authorities and/or Muslims due to your conversion from Muslim to Christianity, you claimed that you converted to Christianity when you were adopted by Mr Goodwin in 1982 (see Q&A 23 Annex 1). You believe that Muslim members would kill people who convert from Muslim to Christianity. You also mentioned in the Interview that as your parents were members of the Boko Haram, the Boko Haram members would kill you if they know that you converted to Christianity and that you would be killed or punished by the Nigerian government as there are videos in Internet showing that people converting to Christianity are killed (see Q&A 24-25 in Annex 1).

26. First of all, according to your NCF dated 5 August 2016 submitted in your previous claim, you declared that your religion is Christian. In the Interview, you were asked “Why did you not mention your conversion from Muslim to Christianity?” and you answered “Same, I fear I will be punished by Hong Kong Government.” (see Q&A 12 in Annex 1) Similar to the reasoning mentioned in paragraphs 22 to 23 above, it is considered that you could not satisfactorily explain why you did not mention your conversion from Muslim to Christianity in your previous claim. Secondly, in the Interview, when you were asked “Do you have any other information or personal experiences to support your fear of being harmed for you being a Christian convert upon your future return to Nigeria?, you answered “I saw many videos in YouTube in which Christian converts are killed by Muslim people. I don’t have personal experiences.” (see Q&A 27 in Annex 1) Even if not to dispute the fact that you have converted from Muslim to Christianity since 1982, there is no information/evidence at all indicating that you and suffered from any sort of ill-treatment or threats due to your religious conversion during your 27-years stay from 1982 to 2009 in Nigeria. Although you claim that when you were young, you were told by your neighbors that your parents are members of the Boko Haram who would kill people converting from Muslim to Christianity, the fact is that you have never encountered any problem due to your religious conversion during your 27-year stay in Nigeria, or after you departed Nigeria in 2009. As such, your fear of being harmed or killed due to your past conversion from Muslim to Christianity appears to be a bare speculation which is not supported by any credible evidence.

27. Furthermore, according to a press release titled “Amidst death threats, Nigerian Court rules Christian convert is free to change her religions” published on 24 August 2023 by the Alliance Defending Freedom International, “a high court in northern Nigeria handed down an order of perpetual injunction against her father and brothers. The order stated: “the defendants are hereby restrained from threat and attempt on the life of the applicant following her decision to change from the practice of Islam to Christianity and also not to breach her fundamental rights as to the choice of her religion or thoughts.” No appeals were filed against the order.” It is observed that the right to religious freedom is recognized and protected by the court in Nigeria.

28. According to the “2022 report on International Religious Freedom: Nigeria”, “as of 2015, the country is 50 percent Muslim and 48.1 percent Christian … Islam is the dominant religion in the North West and North East regions, although significant Christian populations reside there as well, Christians and Muslims reside in approximately equal numbers in the North Central region. Christianity is the dominant religion in the South West, including Lagos, which is also home to significant Muslim populations. In the South East region, Christian groups, including Catholics, Anglicans, and Methodists, constitute the majority. In the South South, Christians form a substantial majority. There are small but growing numbers of Muslims in the South South and South East.” It is considered that you could relocate to places where Christians form a substantial majority, for example, the South South of Nigeria, so that you could avoid your alleged risk of harm from Muslim members, if any.

29. All in all, having duly considered your past experience in Nigeria and the country condition of Nigeria, it is viewed that there is no substantial evidence indicating a real and foreseeable risk of harm against you upon your return to Nigeria. It is not accepted that the alleged fear from Nigerian authorities and/or Muslims due to your conversion from Muslim to Christianity constitutes a significant change of circumstances of your case.”              

18.Firstly, on the issue of credibility as to this claim, the Applicant did in fact already in his NCF for his previous claim disclose of his religion of Christianity, and that his explanation of how he converted from Islam to Christianity as a child after being adopted by Mr Goodwin who himself was a Christian cannot in my view be said to be incredible or inherently implausible, and hence there is no proper basis for the immigration officer to raise any credibility issue over his religion as a Christian because he did not raise it in his previous claim, for which the Applicant did also explain that prior to his departure of Nigeria and while he was in Lagos, he never received any direct threats from the local Muslims, and that it was only after he had left Nigeria and recently in Hong Kong that he noticed on the internet of surges of terrorist activities against Christians in Nigeria that he has become fearful of such risk if refouled to Nigeria, and hence his present request to raise such a subsequent claim.     

19.Given the fact that it was not a risk that had ever been assessed before in the Applicant’s previous claim, and as there appears to be no proper basis to dispute or challenge his credibility as regard such claim, it seems to me reasonably arguable that in considering the Applicant’s request to raise such subsequent claim, the immigration officer failed to make proper or sufficient inquiry into relevant COI as to the latest conditions and situations in Nigeria not just regarding religious conflicts between local Muslims and Christians, but more relevantly terrorist activities of Islamic extremist terrorist groups such as Boko Haram in Nigeria which the Applicant has specifically mentioned in his request, as it has been well established by authorities that a decision-maker facing such a claim is required to do.

20.The UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status which provides guidance to decision-makers in conducting refugee status determination states that while the  applicant has the burden of proof, the duty to ascertain and evaluate all relevant facts is shared between the applicant and examiner, and in appropriate cases where the statements are not susceptible of proof, if the applicant’s account appears credible, and unless there are good reasons to the contrary, he should be given the benefit of the doubt: see paras. 195 and 196 of the Handbook.

21.The Handbook also provides that the applicant’s statements cannot be considered in the abstract, and must be viewed in the context of the relevant background situation, and that a knowledge of conditions in the applicant’s country of origin is an important element in assessing the applicant’s credibility: see para 42 of the Handbook. 

22.In adopting the guidance provided by the UNHCR Handbook as a useful reference for dealing with torture claims raised in Hong Kong, the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, held that in the determination of the torture claim of a potential deportee in accordance with the policy is plainly one of momentous importance to the individual concerned, and when life and limb are said to be in jeopardy and his fundamental human right not to be subjected to torture is involved, high standards of fairness must be demanded in the making of such a determination: see paras 44 - 45 of the Judgment.

23.Li CJ in giving that judgment of the Court elaborated that in considering the potential deportee’s torture claim, the necessary high standards of fairness should be approached in that the potential deportee should be given every opportunity to establish his claim, which should then be properly assessed by the decision-maker in that all relevant matters should be considered including, inter alia, the conditions in the country concerned, such as whether there is evidence of a consistent pattern of gross, flagrant or mass violations of human rights in that country, or has the situation changed: see paras. 51 - 52 of the Judgment.

24.His Lordship further observed that difficulties of proof faced by the claimant in such situation should be appreciated as he may have fled from the country concerned with few belongings and documents and his level of education may be relatively low, and that an understanding of country conditions at the time of the alleged torture in the past as well as at the present time is usually relevant to the assessment of the claim: see paras 53 - 55 of the Judgment.

25.Henceforth COI is a critical means of ensuring a complete understanding of the relevant risks in the Applicant’s home country, which is now in Nigeria, of which clearly no assessment of the relevant COI as regard anti-Christians situations have ever been conducted in the Applicant’s previous claim which essentially concerned only his birth country Niger. 

26.Granted that the present case concerned a request by the Applicant to make a subsequent claim, the burden is on him to provide sufficient evidence in writing to satisfy the immigration officer that there has been a significant change of circumstances since his previous claim was finally determined and that such change when taken together with the material previously submitted in support of his previous claim would give his subsequent claim a realistic prospect of success, as stipulated by Section 37ZO (2) of the Ordinance, high standards of fairness in my view also apply in the consideration of his such request, and that in doing so the immigration officer should have made proper and sufficient inquiry into relevant COI as to anti-Christians activities by Islamic extremist groups in Nigeria in particularly Boko Haram since the Applicant’s departure of the country in 2012 and up to the present, and that it was not sufficient to just rely on those 2 articles referred to in [27] - [28] of the decision which concerned respectively a Nigerian court granting an order to protect a Christian convert from harm from her family, and the distribution of Christian populations in various parts of Nigeria.                                    

27.In the premises, and for the reasons given, I am of the view that the Applicant’s intended application for judicial review of the Director’s decision is reasonably arguable on the ground that the Director failed to make any or sufficient inquiry into relevant COI regarding anti-Christians activities in Nigeria by Muslims including Islamic extremist groups in particularly Boko Haram in the consideration of the Applicant’s request to make a subsequent claim based on his claimed fear of harm as a Christian if refouled to Nigeria, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

28.Accordingly I grant leave to the Applicant to apply for judicial review of the Director’s decision on the ground stated above, 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 the respondent to the application.

Dated the 15^th day of July 2024

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