UBAH ODINAKA KINGSLEY v. TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 859/2018

[2019] HKCFI 1344

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 859 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 the Applicant being present / absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 38-year-old national of Nigeria who arrived in Hong Kong on 24 March 2008 with permission to remain as a visitor up to 7 April 2008 when he did not depart and instead overstayed and was arrested by police on 31 October 2013. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Nigeria he would be harmed or killed by some villagers in his home village over a land dispute.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Umuoparaji Ogbor Ugiri Village, Isiala Mbano District, Imo State, Nigeria.  After leaving school he traded in automobile parts and lived with his parents in his father’s farmland inherited from his ancestors in their home village.

3.  There had been a history of dispute between his family and some of the villagers over the ownership of his father’s farmland which had on occasions required the intervention of the police.

4.  One day in about mid-2007 whilst his parents were working on their farmland, the applicant saw a group of local villagers came onto their land with weapons and demanded his parents to give up the land, and when they refused, the villagers shot and killed them with a rifle.

5.  Seeing the shooting the applicant fled to hide in his friend’s place in the neighbouring village and reported the incident to the police, but when the police failed to make any arrest as he was unable to identify the culprits, the applicant therefore left for Lagos where he stayed with a friend, and when he heard that those villagers were looking for him everywhere, he decided that it was no longer safe to remain in Nigeria, and therefore departed on 23 March 2008 for Hong Kong where he overstayed until his arrest in October 2013 and raised his non-refoulement claim, for which he later completed a Non-refoulement Claim Form on 11 November 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 20 January 2017 the Director of Immigration (“the 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 or non-derogable rights under the Hong Kong Bill of Rights (“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”).

7.  In his decision the Director took into account all the relevant circumstances of the applicant’s claim and found no substantial ground for believing that there will be any real risk of him being harmed or killed by his local villagers upon his return to Nigeria due to the absence of past ill-treatment from them, that there was no reliable evidence of any intention on their part to harm or kill him, that in any event it was a private dispute over land between them that 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 Country of Origin Information (“COI”) show 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 work experience to move to other part of Nigeria away from his home village in large cities such as Lagos where he had stayed before for some 10 months without any incidents and where it would be difficult if not impossible for those villagers in his home village to locate him.

8.  On 26 January 2017 the applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 13 March 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 2 May 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.  While being released on recognizance he married a local resident and resided with her.

9.  In its decision the Board found the applicant’s account of events occurred in Nigeria before his departure vague and contradictory that his claim was not accepted as credible, that even if his claim were true that it is unlikely that any of those villagers would still have any continuing interest in him after all these years, and that being an able-bodied adult with work experience that it would not be unreasonable for him to safely relocate elsewhere in Nigeria without any fear of being located by those villagers that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 17 May 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he merely repeated his claim of problems still at home and that his life would be in danger if refouled to Nigeria.

11.  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 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 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.

12.  In the applicant’s case, the adjudicator rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 42 – 61 of the Board’s decision and with the benefit of hearing him in evidence and in his answers to questions raised of his claim at his appeal hearing, coupled by the fact that his failure to make his claim until after more than five years of his arrival in Hong Kong had seriously undermined or damaged his credibility, and in the absence of any error of law or procedural unfairness being identified by him in the Board’s decision, I do not find any merits or reasonably arguable basis to challenge the findings of the adjudicator.

13.  Furthermore, the fact is that it has been established by both the Director and the Board in their respective decision 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.

14.  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.

15.  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