EBHONUN AKONJIE ALEX v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 670/2018

[2021] HKCFI 832

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 670 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 32-year-old national of Nigeria who arrived in Hong Kong on 7 September 2017 in transit for Fiji but when his onward flight ticket was found to be invalid, and when he was subsequently refused entry to Hong Kong by the Immigration Department, he raised a non-refoulement claim on the basis that if he returned to Nigeria he would be harmed or killed by some local vigilantes in his home village for his homosexual relationship with another man. He was subsequently being released on recognizance pending the determination of his claim. 

2.  The Applicant was born and raised in Ebelle, Edo State, Nigeria. After leaving school he worked as a mechanic in his home village.

3.  In about October 2016 he made friend with a fellow mechanic by the name of Osas from a nearby workshop, but when he realized that Osas wanted to start a homosexual relationship with him, he resisted as he knew it was against the law in Nigeria with heavy penalty, still he continued to go out with Osas after being showered with gifts from him, and eventually they did on occasions secretly have sex in various places.

4.  However, on one such occasion in August 2017 while they were together in a room, some local residents stormed in and beat them, and then forcefully brought them to the village elders for punishment, but when a crowd had gathered, the Applicant managed to escape during the commotion by fleeing from the scene and hiding in the bushes for 2 days before he eventually made his way out of the village and to a neighbouring town where he was able to get help from a friend to make arrangements to leave the country.      

5.  Eventually the Applicant made his way to Lagos, and from there he departed on 6 September 2017 for Kenya, and on 7 September 2017 he arrived in Hong Kong in transit for Fiji, but when he was told that his ticket for Fiji was invalid, and when he was refused entry to Hong Kong, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 17 October 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 31 October 2017 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 his absolute and non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) 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”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed by those local vigilantes upon his return to Nigeria due to the low intensity and frequency of past ill-treatment from them, that there was no evidence of any real intention in those vigilantes to seriously harm or kill him, that in the absence of any official involvement that state 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 Nigeria with a large population of 190 million people spread across a vast territory of more than 910,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other area away from his home district in large cities such as Lagos where it would be difficult if not impossible for those local vigilantes to locate him.   

8.  On 15 November 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and also requested for an Esan interpreter, for which the Board held a preliminary hearing on 16 January 2018 together with another case in which the Nigerian applicant also made the similar request, and upon hearing submission made by both applicants, the Board refused their request and decided that the appeal hearing be conducted in English without an Esan interpreter.

9.  Accordingly, the Applicant attended his appeal hearing on 5 March 2018 before the Board during which he gave evidence and answered questions in English raised by the Adjudicator for the Board. On 15 March 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its appeal decision the Board found no evidence that the Applicant was a gay person but rather that he was by inclination a heterosexual man, that his sexual relationship with Osas was an one-off affair, that there is no evidence to show if refouled that he would resume his sexual relationship with Osas or with any other man as his sexual history did not show the profile of an active and prominent homosexual, that the totality of the evidence indicated that the Applicant’s fear of harm was based on the consequence flowing from the discovery by the local vigilantes that he feared of being recognized by them because of the incidence in August 2017 and not because he intended to live a homosexual lifestyle if refouled, and in the absence of any evidence that the Nigerian authorities or police were looking for him over any offence that reasonable internal relocation within Nigeria would be available for him to move safely to other area away from his home district without any risk of being located by those local vigilantes that his claim for non-refoulement protection failed on all applicable grounds.      

11.  On 18 April 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affidavit of the same date he put forward various grounds for his intended challenge summarized as follows:

 (1)  No lawyer was provided to the Applicant for his appeal before the Board;

 (2)  No language assistance or proper interpreter was provided to the Applicant during his appeal hearing before the Board which is procedurally unfair in view of his limited ability to speak and understand English;

 (3)  The Board’s decision to reject the Applicant’s claim was unreasonable; and

 (4)  That the Board’s decision was based on assumption.   

12.  For his complaint in Ground (1) of not being provided with legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 367, and Re Zafar Muazam [2018] HKCA 176.

13.  The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the Adjudicator without difficulty. As such I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

14.  As for his complaint under Ground (2) of not being provided with an Esan interpreter for his appeal hearing before the Board, of which the Board did already as noted above find as a fact that there is no Esan interpreter in Hong Kong, that the expenses and technical difficulties did not justify bringing one from overseas, that English is the official language in Nigeria and in which the Applicant did indicate in his NCF that he could read and write, and the fact that he was able to give his evidence and answer questions in English from the Adjudicator during his appeal hearing before the Board show that there is no merits in this complaint of the Applicant.

15.  As a matter of fact, even up to now the Applicant has not provided any information as to what was it about his case during his appeal hearing that he was unable to address or make representation to the Board in English, or that he was denied the opportunity to adduce such evidence before the Board that he could only do so in the Esan language, or that the Board as a result might have misunderstood or misinterpreted the basis of his claim. There is simply none in his application or his supporting affidavit, both of which are in English prepared either in his own hand or with the assistance of someone proficient in that language, and of which I note that the Applicant did swear to his affidavit without the need of interpretation. In the premises there is simply no basis in this ground of the Applicant, and that I do not find it reasonably arguable for his intended challenge.      

16.  As for his complaints in the two remaining grounds that the Board’s decision was unreasonable and based on assumptions, they are just some broad and vague assertions of the Applicant without any particulars or specifics or elaborations as to how it was so, and as such I do not find them reasonably arguable for his intended challenge either.

17.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the Applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

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

19.  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.

20.  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 his 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