ILEAGU JOY EZINNE v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 850/2018

[2021] HKCFI 1110

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 850 of 2018

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 / the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 40-year-old national of Nigeria who arrived in Hong Kong on 2 October 2008 with permission to remain as a visitor up to 16 October 2008 when she did not depart and instead overstayed, and was arrested by police on 11 December 2012. After she was referred to the Immigration Department for investigation, she subsequently raised a non-refoulement claim on the basis that if she returned to Nigeria she would be harmed or killed by her uncle and cousins over a land dispute and/or by the people of the militant group known as the Movement for the Emancipation of the Niger Delta (“MEND”) for refusing to join their group. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Umunya, Amanbra, Nigeria. Her parents died when she was small and was placed in the care of her uncle and his family. Later she learnt that she had inherited some land from her parents’ estate, but which was coveted by her uncle and his sons who demanded that she transferred them to him, and when she refused, they became abusive to her that eventually when she was older, she ran away from her uncle’s home for other towns and eventually to Port Harcourt where she became acquainted with some members of MEND who tried to force her to join their group, but she managed to make her escape and fled to Cameroon where she found a job as a salesgirl.

3.  On 2 October 2008 she visited Hong Kong for 2 weeks to look for business opportunities, during which she ran into a member of MEND who beat her and threatened her that his people were still looking for her in Nigeria, and that she also met one of her uncle’s sons who demanded her to hand over the title of the land and threatened that if she refused, she would be killed when she returned to Nigeria.   

4.  Fearing for her safety in Nigeria, the Applicant therefore overstayed in Hong Kong, and upon her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 9 November 2016 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.  By a Notice of Decision dated 14 December 2016 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 her 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 all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her uncle or those MEND people upon her return to Nigeria as low due to the low intensity and frequency of past ill-treatment from them, that there is no real intention of her uncle and sons to harm or kill her other than to press her for her land, that the latest Country of Origin Information (“COI”) does not reveal any information or activities of MEND in Nigeria, that the Applicant’s behavior in Cameroon and Hong Kong were not consistent with someone in fear of harm in Nigeria, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective COI shows 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 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 parts of Nigeria away from her home district where it would be difficult if not impossible for her perceived enemies to locate her.

7.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 26 February 2018 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board including her plan to return to Nigeria in the near future where she would settle down and to get married but meanwhile she would like to continue with her application. On 19 April 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found the Applicant’s evidence as to her claimed fear of harm from her uncle and the MEND people vague, unsubstantiated and contradictory, that her alleged incidents of running into one of the MEND people and her uncle’s son during her short visit in Hong Kong suggest an unbelievable coincidence, and that her willingness to return to Nigeria further undermines her claims of fear of harm from her uncle or the MEND people that it has serious concerns regarding her credibility that her claim for non-refoulement protection failed on all applicable grounds.    

9.  On 16 May 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in her Form, and in her supporting affidavit of the same date she merely stated that their decisions disregarded the danger and threats she would face should she be deported to her home country but without providing any particulars or elaboration how they did so or put forward any other proper ground for her intended challenge, nor did she request any oral hearing for her application.

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 Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 52 – 65 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.  

12.  Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for her to relocate to other parts of Nigeria, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

13.  In the premises and 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.

14.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.

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