ASEKOME JOHN RICHARD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION

HCAL 210/2019

[2022] HKCFI 902

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 210 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;     or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.     This is the applicant’s application for leave to apply for judicial review of the Decision dated 5 December 2018, which is the Decision of the Director of Immigration. As he had appealed the Director’s Decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”), he cannot apply for judicial review of the Director’s Decision. See Moshsin Ali [2018] HKCA 549, §45. It is clear that he intended to apply for judicial review of the Board’s Decision dated 14 June 2019, which predates this application. Form 86 will be rectified accordingly.

2.     The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.     Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent, the Director of Immigration (the “Director”) is the interested party and the date of the Form 86 shall be the next working day of the date of the Board’s Decision.

The applicant

4.     The applicant is a national of Nigeria.  He last entered Hong Kong as a visitor on 26 July 2013 and was permitted to stay until 2 August 2013.  Upon his application for extension of time, his limitation of stay was extended to 9 August 2013.  He did not depart and had overstayed since 10 August 2013.  On 19 August 2013, he lodged a torture claim which was rejected on 27 November 2013.  On 29 November 2013, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by Ozemuya. 

5.     According to the applicant, he joined the Action Congress Party of Nigeria (“AC”) in 2012 and actively participated in the party’s events. Ozemuya was the chairman of People’s Democratic Party (“PDP”), the political rivalry of AC.  On 6 January 2013, Ozemuya, together with some PDP members, crashed the AC’s meeting and threatened the applicant to join the PDP.  Later, on 14 January 2013, Ozemuya attacked another AC meeting and, during the attack, six people died.  While the applicant escaped from the scene, he was shot by bullets and received medical treatments.  Nevertheless, nobody was arrested for the attack.  The applicant also claimed that the PDP kidnapped his family.  Subsequently, he fled to Lagos and eventually to Hong Kong for protection.  Details of his claim were set out at paragraph 11 of the Notice of Decision dated 5 December 2018 (“the Director’s Decision”) and paragraph 26 of the Board’s Decision as described below.     

The Director’s Decision

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

(1)   risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”);

(2)   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

(3)   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”).

7.     By way of the Director’s Decision, the Director refused the applicant’s claim on BOR2 risk, BOR3 risk and Persecution risk.  The Director found that the level of risk of harm upon his refoulement was assessed to be low because (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [21]-[27]; (ii) state protection was available to him [28]-[30] and (iii) internal relocation was also an option open to him [31].

The Board’s Decision

8.     The applicant appealed the Director’s Decision to the Board.  The Board scheduled an oral hearing on 28 March 2019 for his appeal, during which the applicant gave evidence with the assistance of an interpreter [16].  The Board noted that, in the applicant’s notice of appeal, he added a new source of fear that he would be harmed by AC because they suspected him to be a traitor for his meetings with Ozemuya [29].

9.     The Board found that the applicant was inconsistent in several material aspects of his claim, such as the name of the friend who drove him to Lagos and whom he stayed with in Lagos [37]-[38].  It also found that the applicant’s evidence in relation to his family after his escape was neither probative nor reliable [40]-[43].  Further, the Board considered the applicant’s explanation unsatisfactory for the inconsistencies exhibited in the evidence, such as the contradictory accounts on how he learnt that the PDP members were still looking for him [44].

10.     In relation to the applicant’s political affiliations and his claimed fear of harm from the PDP, the Board explored the relevant aspects in details with him [47]-[65].  Having considered all the evidence, the Board accepted that the applicant was a member of AC but not in a significant position as claimed by himself; that he was attacked during the AC party meetings but was not personally a target of the PDP.  It refused to accept that the applicant had gone into hiding in the forest or escaped to Lagos to avoid PDP.  Further, based on the country of origin information and the applicant’s own evidence, AC had since grown and merged into a bigger party since he left Nigeria and the applicant had no intention to join any political group.  There was no evidence suggesting that a former member of a political group would still be pursued since he would not participate in any political events.  Meanwhile, the Board rejected the applicant’s new claimed fear of harm from his own party as he had not provided any supporting evidence that he or his family would be harmed by AC or the newly formed party [66].  

11.     For the aforesaid reasons, the Board rejected the applicant’s claim and dismissed his appeal.     

Application for leave to apply for judicial review

12.     The applicant filed Form 86 on 22 January 2019 for leave to apply for judicial review of the Board’s Decision.

13.     In his affidavit in support of his application, he did not set out any specific ground in support of his application.

DISCUSSION

14.     The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

16.     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.”

17.     The applicant has not raised any valid ground to challenge the Board’s Decision.

18.     The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19.     There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

20.     I therefore refuse to grant leave for the applicant to apply for judicial review.  Accordingly, I dismiss his 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