RE IZEBHOR FESTUS OSAKWE

CACV 141/2021

[2021] HKCA 1894

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 141 OF 2021

(ON APPEAL FROM HCAL 682 OF 2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 19 March 2021 (“Judge’s Decision”) refusing to grant leave for judicial review.  The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 8 March 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“NRF Claim”) by a notice of decision dated 22 November 2017 (“Director’s Decision”).

Basis and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of Nigeria, is a fear of being harmed or even killed by the Boko Haram (“Boko”) and the Fulani Herdsmen (“Fulani”), both terrorist groups, because he refused to join them and had witnessed the murder of his parents by people of the latter group.

3.  The circumstances allegedly giving rise to such fear have been set out in paragraph 19 of the Director’s Decision, paragraphs 17 and 18 of the Board’s Decision and [2] to [4] of the Judge’s Decision embodied in the Form CALL-1 [2021] HKCFI 834 (“Form CALL-1”).

4.  Briefly:

(1)     Both the Boko and the Fulani had gone to the applicant’s house many times in order to recruit him to join them.  The Boko started first whereas the Fulani arrived later in around 2017.

(2)     The applicant’s father refused to let the applicant join either group.  The Fulani people had beaten up the applicant’s parents multiple times and threatened to kill the whole family if they persisted in their refusal.

(3)     Upon his father’s complaint, the police admitted that they could not do anything as the attackers were terrorists.

(4)     One night in August 2017, people belonging to the Fulani gunned down his parents in their room while the applicant witnessed the murder through the gaps in the bamboo screen separating his and his parents’ room.  Fearing for his own life, the applicant escaped to, and stayed the night in, the bushes.

(5)     The next day, he went to see a friend’s father who was a travel agent.  He advised the applicant to flee to Fiji as the Fulani people would be after him.

(6)     The applicant left Nigeria on 6 September 2017, thinking that he was going to Fiji.

Arrival in Hong Kong and lodgment of NRF Claim

5.  The applicant arrived in Hong Kong on 7 September 2017 for transit to Fiji when in fact he did not have a valid ticket to Fiji.  He raised the NRF Claim by written significations dated 7 and 11 September 2017 upon being refused permission to land in Hong Kong.

Director’s Decision

6.  After considering the information provided by the applicant in his non-refoulement claim form dated 4 October 2017[1], the Director found the NRF Claim unsubstantiated for torture risk, persecution risk, “BOR 2” risk[2] and “BOR 3” risk.

(1)     First, the risk of future harm from the Boko or the Fulani was low.  The applicant was not hurt or directly threatened in any of the incidents described by him.  The ill-treatment inflicted upon the applicant did not attain a minimum level of severity.  It was unreasonable for the applicant and his parents to stay in their village despite the alleged multiple assaults and threats by the Fulani, especially after the police admitted they could not protect them from such harm.  There is no evidence that the Fulani had chased or would chase after the applicant who managed to leave Nigeria safely.

(2)     Second, the availability of reasonable state protection would lower or even negate the risk, if any.  There is objective country of origin information (COI) showing that the Nigerian government has reformed the police and used military actions against the Fulani and other terrorist groups to protect its citizens.  There are also alternative avenues for assistance in Nigeria.

(3)     Third, the perceived risk can be further reduced by internal relocation within a large populous country like Nigeria.  The applicant, an able-bodied adult, would suffer little or no hardship in moving to say Abuja or Lagos.

Appeal to Board and Board’s Decision

7.  The applicant appealed to the Board.  The Board conducted a rehearing of the NRF Claim on 27 February 2018, at which the applicant, who was present and represented by a duty lawyer, adopted the evidence in the hearing bundle as his evidence and answered the Board’s questions deliberately couched in simple English, with the applicant’s answers repeated to him for confirmation.

8.  The Board dismissed the appeal.  It examined the relevant COI, in particular those related to the Fulani and the Bokoaram, and concluded that the alleged attempts by either group to recruit the applicant was implausible and illogical.  There was no or no credible evidence that the Boko had ever carried out any recruitment exercise in Nigeria or in the applicant’s home state which was a long way from the Boko’s base.  Likewise, there was no or no credible evidence that the Fulani had ever carried out any recruitment exercise in Nigeria.  In any event, it would not be reasonable or rational for them, an ethnic and largely Muslim group of cattle herders, to target a man who was sedentary, who did not know how to tend to cattle and was of a different religion.

9.  The Board also found the alleged murder of the applicant’s parents by the Fulani incredible.  It is inconceivable that the Fulani, whose aim was to recruit the applicant, did not try to look for him in the house.

10.  In any event, the option of internal relocation was available to the applicant.

Application for leave for judicial review and Judge’s Decision

11.  By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 682/2018 on 19 April 2018 and a supporting affirmation filed on the same date, the applicant applied for judicial review of the Board’s Decision on grounds cited by the Judge at [11] of the Form CALL-1 as follows:

“On 19 April 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affidavit of the same date he put forward the following grounds for his intended challenge:

(1) that he was not educated and with difficulties to express himself in English but he was not provided with any proper interpreter in his appeal hearing before the Board which was procedurally unfair and unreasonable;

(2) that in the absence of evidence to prove his case the Board was wrong to infer that the Applicant has no case; and

(3) that the Board made its decision based on assumption.”

12.  The applicant did not ask for an oral hearing.  The Judge refused leave on paper for the reasons set out in [12] to [18] of the Form CALL-1:

“12.     For the Applicant’s complaint in Ground (1) of not being provided with an Esan interpreter for his appeal hearing, as noted above the Board did properly conduct a separate hearing for that issue, and as pointed out in that decision, a copy of which was attached to the Board’s later decision under this application, the Applicant did indicate in his NCF completed with the assistance of legal representation from DLS that he speaks and writes English which is the official language of Nigeria and which is the language that he used in his present application before me including his supporting affirmation which he was able to swear to in English without interpreter, and with the stated difficulties in getting an Esan interpreter which is none in Hong Kong, and in the absence of any particulars or specifics from the Applicant even up to now in his present application to demonstrate that the basis of his claim has indeed been wrongly understood by the Board or the Adjudicator, I find this complaint of his simply speculative and without basis, and that it is not reasonably arguable for his intended challenge.

13.     As for his remaining Ground (2) and (3), they are just broad and vague assertions of the Applicant without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the Board wrong or on what assumption did it make its decision.  None of which did the Applicant provide any details or elaborations.  As such and in the absence of any error of law or facts in the decision being clearly and properly identified by the Applicant, I do not find either of them reasonably arguable for his intended application.

14.     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.

15.     In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 32 – 76 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his 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.

16.     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 to avoid any risk of harm from either the Fulani herdsmen or the Boko Haram, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.     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.

18.     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.”

Appeal to Court of Appeal

13.  By the notice of appeal filed herein on 1 April 2021, the applicant appealed against the Judge’s Decision on the ground that “he failed to show any good cause to refuse” him leave to apply for judicial review.

14.  In breach of paragraph 3(1) of the directions given by the Registrar of Civil Appeals by letter dated 3 June 2021, the applicant failed to lodge skeleton submissions 28 days before the hearing of the appeal, despite having been warned in paragraph 4 that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance with such direction.

15.  The requirement for the lodgment of skeleton submissions in a civil appeal is prescribed by Practice Direction 4.1.  The filing and service of skeleton submissions by the parties are important for the preparation of an appeal, both for the court and the litigants.  Non-compliance substantially impairs the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing.  Nowadays, this court no longer permits unfocused oral presentation of material at a hearing.  In view of the heavy demand on the court’s time due to the large volume of appeals, in recent times this court has taken a firm stance on the requirement to lodge skeleton submissions.  Non-compliance is treated as the abandonment of the right to an oral hearing.

16.  The hearing date on 10 August 2021 was therefore vacated, leaving us to deal with the appeal on paper on the basis of the material already filed with the court.

Discussion

17.  In view of the stroppy manner in which the applicant has conducted this appeal, we can dispose of the same shortly.

18.  The Court of Appeal will interfere with a refusal of leave to apply for judicial review if and only if the appellant raises ground(s) of appeal showing that the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(2) & (4)].

19.  The complaint that the Judge did not show good reasons for refusing leave cannot stand having regard to [12] to [18] of the Form CALL-1.  See [12] above.

20.  The applicant simply did not in the notice of appeal before us identify any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong.  We cannot discern any either.

21.  In any event, we have anxiously scrutinised the Board’s Decision and the Judge’s Decision and are satisfied that they are both in order.

Disposition

22.  For these reasons, we see no basis to interfere with the Judge’s Decision.  Accordingly, we dismiss the appeal.