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HCAL 2923/2018
[2022] HKCFI 2805
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2923 of 2018
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Anudike Chibuzor Charles |
Applicant |
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and
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
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Putative Respondent |
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and
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Director of Immigration
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Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge To:
Leave to apply for Judicial Review refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 19 December 2018 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (the “Board”) dated 6 September 2018 (the “Second Decision”) dismissing the appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision 4 May 2017 (the “Second Notice”). The application was made 13 days out of time. The Court was prepared to condone the delay if there was any prospect of success in the intended judicial review. Hence, the Court proceeded to consider merits of the application.
2. The Applicant is a Nigerian national, now aged 37. He entered Hong Kong on 7 February 2008 as a visitor and was permitted to remain until late February. He overstayed and was arrested on 8 July 2012, nearly four and half years later. On 12 July 2012[1], he raised a torture claim which was later converted to a non-refoulement claim.
3. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4]; and BOR 2 Risk[5]. The Director rejected his claims under the first three grounds by his notice of decision dated 10 August 2015 (the “First Notice”). Then, the Director invited the Applicant to submit additional information, if any, which he considered relevant to his claims on all applicable grounds, specifically including BOR 2 Risk ground, in case he had omitted them due to any misunderstanding. The Applicant did not submit any information within the time allowed. Having reassessed his entitlement, the Director rejected his claim under BOR 2 Risk ground in his Second Notice.
4. The Applicant appealed to the Board against both Notices of the Director. On 24 January 2017, the Board dismissed his appeal in respect of the First Notice (the “First Decision”). On 6 September 2018, by its Second Decision, the same Board dismissed his appeal against the Second Notice. On 19 December 2018, the Applicant applied for leave to apply for judicial review of the Second Decision. It should be noted that no application for leave to apply for judicial review was made in respect of the First Decision which is now final and binding on the Applicant.
5. The Applicant did not request an oral hearing. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.
The Applicant’s case
6. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claimed that he would be harmed by his Muslim customers upon his return to Nigeria because they believed he, being a Christian, had a sexual relationship with a Muslim woman.
7. The Applicant was born in Abia State, Nigeria and of Ibo ethnicity. His family were residing in Nigeria and he and his family members were Christians. After completing senior secondary 3 education in 2005, he started his own business in Kano selling home products.
8. A woman (“L”) owned a shop near to the Applicant’s shop. L was of Hausa and/or Fulani ethnicity. One day, one of his customers (“X”) who was also of Hausa and/or Fulani ethnicity, asked him what kind of relationship he had with L. The Applicant replied that there was nothing improper between him and L and that they were courteous towards each other. He believed X disliked the idea of a Christian and of Ibo ethnicity (i.e. the Applicant) having a close relationship with a woman of Hausa/Fulani ethnicity and of Muslim faith (i.e. L).
9. One day the Applicant went to X’s shop to collect on an outstanding payment. X activated an alarm and a few people attacked the Applicant. His head was hit by a glass bottle and his right arm was stabbed by the broken bottle. They punched and kicked him. He suffered injuries all over his body. He managed to escape and took refuge in a shop owned by his friend. He sought treatment from a local chemist and received stitches. He did not report to the police as he believed the police would help the assailants who were fellow Muslims.
10. Later, L told him to leave because some of his customers were not happy with him, believing that he was having a sexual relationship with L. The Applicant fled to Lagos in mid-2006 and never returned to Kano.
11. About one year after he had moved to Lagos, a man who looked like one of his former customers approached him on a bus and told him that he recognized him. The Applicant got off on the next stop. The man did not follow him. A few days later, his colleague told him that while he was away, three people went to his workplace asking for him by showing his picture. The Applicant decided to flee to Hong Kong.
12. The Applicant claimed that the Nigerian police would not protect him as they were very corrupt. Further, he cannot safely relocate to other cities in Nigeria because he could be found by the assailants, as had happened in Lagos.
The finding of the Board in the First Decision
13. The Board found the Applicant incredible and unreliable. He did not raise any claim for protection until he was arrested nearly four and half years after he first arrived in Hong Kong. The Board did not accept his explanations that he had committed an offence by overstaying and feared the Hong Kong police would torture him just as Nigerian police did. The Board did not accept that he travelled a long distance to come to Hong Kong to avoid a small number of ex-customers when he was able to safely relocate to Lagos for one and half years. The Board found that he was not in need of protection and that he came to Hong Kong for some other undisclosed reasons.
14. The Board further held that even if his case were true, the injuries he allegedly suffered were not serious and would not attain the requisite level of harm for establishing any of the proscribed risks of harm under the USM. Further, there was no evidence of any involvement by state agent and the dispute he had with his ex-customers was not for a reason within the 1951 Convention relating to the status of Refugees and its 1967 Protocol, namely race, religion, nationality, membership of a particular social group or political opinion. The Board also did not believe the assailants were still interested in locating him and harming him after over 10 years. Even if they intended to do so, they would not have the necessary resources and manpower to locate him in other parts of Nigeria.
15. On the basis of credible country of origin information, the Board found that state protection of an adequate standard is available[6]. The Board further held that as an able-bodied young man with work experience, he can safely relocate without undue hardship to another part of Nigeria[7]. Hence, the Board dismissed his claim based on BOR3 risk, torture risk and persecution risk in its First Decision.
The finding of the Board in the Second Decision
16. The Applicant did not provide the Director with any information in respect of his claim based on BOR2 risk, despite having been invited to do so. In his notice of appeal/petition submitted to the Board, he only claimed that he did not wish to go back because someone would kill him and that he wanted to stay in Hong Kong with his wife.
17. The Board found that his case on BOR2 risk was essentially founded on the same evidence as the case he advanced in respect of the other three risks determined under the First Decision. Hence, the Board found it not necessary to hold a hearing and determined his appeal on paper. In the light of the finding in the First Decision, the Board held it was “abundantly clear” that the Applicant would not face any BOR2 risk if returned to Nigeria and dismissed his appeal against the Second Notice.
Legal principles applicable to judicial review
18. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[8].
Grounds for judicial review
19. The Applicant did not advance any grounds for judicial review in the Form 86. In his supporting affirmation, he asserted that his life is in danger if refouled. The essence of the Applicant’s complaint is that he disagreed with the finding of the Board that it is safe for him to return to his home country. In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to Pakistan. That is not permissible. In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.
Conclusion
20. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. In the First Decision, the Board found the Applicant incredible and rejected his evidence about the harm and risk he would face if returned to Nigeria. It found he was not telling the truth about his reasons for leaving Nigeria and coming to Hong Kong. It found that the ill-treatment he suffered, assuming his case were true, would not attain the requisite level of harm required for establishing any of the proscribed risks of harm under the USM. It also found state protection and internal relocation available to prevent or avoid the risk, if it becomes real. These are finding of facts solely within the province of the Board. These finding of facts are final. It was on that basis that the Board found he had failed to prove the factual basis to support his claim under the BOR 3 Risk, Torture Risk and Persecution Risk grounds.
21. There was no change in circumstances since those finding of facts and no new evidence was adduced by the Applicant in support of his claim under BOR 2 Risk ground. Hence, on that same basis the Board found in its Second Decision that the Applicant had failed to prove his entitlement to non-refoulement protection under BOR 2 Risk ground. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The proposed judicial review has no realistic prospect of success.
22. For the above reasons, leave to apply for judicial review was refused.
Dated the 16th day of September 2022.
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( Allen LEE )
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 his solicitors must:
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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)).
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Sent to the Applicant
on 16/9/2022
Anudike Chibuzor Charles
Applicant’s ref. no:
Nil.
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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 16/9/2022
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 2083/15/8/104/NI42
BOR 598/17/5/98/NI11
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 928/15 and
RBCZ 9000990/17 (formerly RBCZ 242/12)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] The Director identified two different dates for when the Applicant made his torture claim at [1] and [7] of its decision dated 10 August 2015. The latter date of 12 July 2012 in [7] was adopted in this judgment, as the date given in [1] of the decision was inconsistent with the date of the Applicant’s arrest. In any event, nothing turns on the date when he first made his claim.
[2] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[3] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[4] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol.
[5] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[6] Paragraph 28 of the First Decision
[7] Paragraph 18 of the First Decision
[8] [2018] HKCA 524 at para 14(1)
Court
Procedural posture
Issues
Holdings
Legal principles
Disposition
Key citations
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