Audu Musa v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1782/2019

[2024] HKCFI 2358

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1782 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 6 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.The applicant asked for a hearing. However, he was absent at the hearing on 15 July 2024 without prior notice to the Court. I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant, aged 51, is a Nigerian. He entered Hong Kong as a visitor on 20 October 2005 and overstayed since 4 November 2005. The applicant was arrested by the police on 12 July 2007. He made a torture claim on 3 August 2007, which was rejected on 6 February 2014. The applicant lodged a further non-refoulement claim on all applicable grounds other than Torture risk[1] on 7 February 2014. The claim was made on the basis that, if refouled, he would be harmed or even killed by his father or other members of the Warrake community because he converted from a Muslim into a Christian.

5.According to the applicant, he grew up in the Warrake community which practiced Islam and his father was an Islamic leader in the community. In 1982, his parents divorced and he moved to live with his mother away from his hometown in 1989. In 1997, the applicant and his mother started to attend services in a Christian church. In 1999, the applicant received a letter from his father, condemning their converts into Christians and warning them that this was not allowed in the Warrake community. Disregarding the threat from his father, the applicant and his mother were baptised to become Christians in 2000.

6.Since then, the applicant and his mother were always approached by members of the Warrake community. In 2000, the applicant’s mother passed away and he found it difficult to face the situation alone. Whenever the applicant saw people from the Warrake community, he moved to stay in another village to avoid the threats. On one occasion, a man from the Warrake community told the applicant that his continuous relocation was futile, as he could not escape from the community. Eventually, the applicant left Nigeria on 19 October 2005 and arrived in Hong Kong on 20 October 2005.

7.The applicant did not contact anyone from his family since arriving in Hong Kong. He had never sought assistance from the police because he believed that they were corrupt and would not assist him on family disputes relating to religion. The applicant also considered internal relocation not viable because he felt he would be found by members of the Warrake community no matter where he went within Nigeria.

8.Details of the applicant’s story can be found in paragraph 8 of the Director’s Decision dated 27 September 2018 (“the Director’s Decision”).

The Director’s Decisions

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

a. 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”);

b. 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

c. 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”).

10.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that: (i) the absence of past ill-treatment from his father and other members of the Warrake community indicated a small future risk of harm upon his return to Nigeria [14]; (ii) state protection would be available to him [15]-[17]; (iii) internal relocation would be viable [18]-[19] and (iv) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [20]-[25] or Persecution risk [26]-[30].

The Board’s Decision

11.The applicant appealed the Director’s Decision to the Board. On 11 February 2019, the Board conducted an oral hearing.

12.The Board accepted that the applicant was born into a Muslim family and that he had angered his father by converting into a Christian. It also accepted that the applicant’s father and the Warrake community had threatened to harm the applicant, which was the reason why he left Nigeria [36]. However, the Board noted that the applicant’s father would likely have died due to his old age, so that he would no longer be influencing the Warrake community against the applicant [37]. The Board accepted that if he returned to his home village, he would be subjected to harm from members of his community because of religion reason [38]. However, internal relocation would be available to the applicant according to the country of origin information [40]-[44].

13.Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk or BOR 2 and BOR 3 risk [16]-[23], [47]-[53]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

14.The applicant has filed Form 86 on 27 June 2019 to apply for leave to apply for judicial review of the Board’s Decision.

15.In his affidavit in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

16.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

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

18.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.”

19.The Board has made a fair assessment of the applicant’s case. It did not reject his story wholesale. It accepted that he might be subjected to harm from members of his community because of his religion. But internal relocation is viable, which alleviates his risks. Below are the finding of the facts by the Board:

“38. I am willing to accept thought [sic] that if the Appellant resumed to live in his home village, he would be subject to harm from members of the community. I am willing to accept that harm may include a risk to his life or liberty and I accept too the harm would be inflicted against him for reason of his religion. I consider the Appellant has substantiated his claim under the Persecution Risk, BOR 2 Risk, BOR 3 Risk. …

39. I consider whether there is a real risk to the Appellant under the Petition Grounds throughout the Risk State.

42. For the above reasons, I consider it reasonable and that the Appellant would not suffer undue hardship if he was refouled to Nigeria and returned to live in Lagos.

45. I have considered the claims of the Appellant individually and cumulatively, as well considering the personal circumstances of the Appellant. On the credible evidence before me, I do not consider the Appellant faces a real risk of Proscribed Harm from his father, his community and/or Islamic militants, if the Appellant is refouled to the Risk State.

55. I reject the Appellant’s non-refoulement claim as not substantiated on all Applicable Grounds. I confirm the USM Decision for the Appeal and the Petition.”

20.The applicant has not raised any valid ground to challenge the Board’s finding of the facts above.

21.The applicant therefore fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

22.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

The applicant was not represented and did not appear.