RE ONONIWU OKECHUKWU RAYMOND

CACV 613/2020

[2021] HKCA 1440

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 613 OF 2020

(ON APPEAL FROM HCAL 2935 OF 2018)

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JUDGMENT

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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 P Li (“Judge”) on 12 November 2020 (“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 18 October 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”).  Such rejection was embodied in, and communicated to the applicant by, a notice of decision dated 12 October 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 now aged about 53, is a fear of being harmed or even killed by members of the Boko Haram (“BH”), a Jihadist terrorist group in Nigeria which is affiliated with the ISIS and targets Christians and their properties in order to convert them to Islam so as to establish an Islamic state in Nigeria.

3.  The circumstances giving rise to such fear have been set out in paragraphs 13 to 40 of the Director’s Decision; paragraphs 25 and 26 of the Board’s Decision; and [1] to [13] of the Judge’s Decision embodied in the Form CALL-1 dated 12 November 2020, [2020] HKCFI 2876 (“Form CALL-1”).

4.  Briefly:

(1)     The applicant was born into a Christian family.

(2)     Starting from late 2013, Maiduguri (where the applicant and his family lived) was frequently bombed by the BH.

(3)     The applicant and his family suffered 4 attacks by the BH in mid February 2014, May 2014, January 2015 and May 2017 respectively. 

(4)     In the first incident, the applicant was assaulted at his shop with a club and a whip for about 30 minutes by around 50 masked BH people armed with knives, whips, guns and arrows etc because the applicant refused to renounce his Christian faith.  He sustained dislocation of his right arm, swollen eyes, head injuries and bruising all over his body, for which he was hospitalised for 2 days.  Before they left, the BH people warned the applicant that they knew where he lived and would go to his house in 3 months. They threatened that if the applicant still maintained his stance by that time, he would be a dead man.

(5)     The applicant’s father was killed in the family home in the second attack about 3 months later.  The applicant’s wife witnessed the murder.  One of the assailants threatened to kill the entire family if they refused to convert from Christianity to Islam.

(6)     In the third attack about 8 months later, around 50 BH members invaded the applicant’s shop while he was out and opened fire at his wife who was shot dead.  The applicant would have been killed too if he had been present at the shop.

(7)     The applicant had reported each of these 3 attacks to the Baga Police Station, which was nearest to Maiduguri.  However, the police there just promised to investigate, without ever coming back to the applicant with the results of the investigations.  The applicant believed that the police did not take his complaints seriously because they were mostly Muslims and they were also afraid of the BH.

(8)     Throughout 2014 and 2015, the applicant and his family lived in constant fear of the BH who had been storming the entire country with bombings and massacres. 

(9)     As time passed by, the applicant no longer felt safe to live in Nigeria.  He decided to flee.  He did so on 5 May 2015. 

(10)    He left his mother and 2 sons, thinking that he alone was the target of the BH and that the BH would not kill kids and elderly people. 

(11)    After his arrival in Hong Kong, the applicant was informed by an old neighbour that the BH people had gone to the applicant’s shop and house to look for him.  On 27 May 2017, they became furious when they could not find him at either place.  They set both places on fire thereby completely wrecking the applicant’s business and home.  The applicant’s mother was killed in this incident.

(12)    The applicant has lost contact with, and does not know the current whereabouts of, his brother and his 2 sons.  He learnt from the news that the situation in Nigeria is worsening.

Overstaying in Hong Kong and lodgment of NRF Claim

5.  The applicant arrived in Hong Kong as a visitor on 15 May 2015 after stopping over in, inter alia, South Africa where he stayed for about a week to conduct certain business negotiations.  He did not encounter any problems throughout his journey with the use of his Nigerian passport.

6.  Instead of leaving before the expiry of his visa, the applicant overstayed since 6 June 2015.  He surrendered to the Immigration Department on 11 June 2015.  He raised the NRF Claim by written representation dated 5 October 2015.  

Director’s Decision

7.  After considering the information provided by the applicant in his Non-refoulement Claim Form dated 9 September 2017 and at the screening interview on 29 September 2017, the Director found the NRF Claim unsubstantiated under any of the applicable grounds for non-refoulement protection: torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].

(1)     First, the risk of future harm from the BH upon his return to Nigeria was assessed to be low and the past ill-treatments, whether physical or mental, did not attain a minimum level of severity.  The applicant did not produce any supporting materials such as copies of police reports in relations to the reported attacks.  There was no independent evidence of the murders of the applicant’s wife and parents by the BH.  The fourth attack was based on hearsay information from a neighbour whom the applicant could no longer contact.  The widespread terrorist acts of the BH indicated that the applicant was not personally targeted.  There were long intervals between each attack.  It was inexplicable why the applicant and his family chose to stay in Maiduguri, instead of moving somewhere else to avoid the next ambush.  

(2)     Second, the availability of reasonable state protection would lower or even negate the risk. There is no evidence that the BH’s attacks and threats to convert Christians into Muslims represents the official stance of the Nigerian government.  It was the applicant who chose not to report what he believed to be deliberate inaction on the part of the Baga Police Station (which was based solely on speculation) to other police stations or authorities.  He had ample opportunities to do so while he was in Nigeria.  There is objective country of origin information (COI) showing that the Nigerian government has initiated reforms to improve police professionalism.  The Nigerian police force has established an anti-terrorism squad.  The Nigerian authorities are taking actions against the BH.  There are also channels available for complaints against the Nigerian police and other authorities for misconduct.  There is no indication of instability in the government of Nigeria.  The president elected in 2015, though himself a Muslim, respects Christians.  He aims to fight against corruption, terrorism and insurgency.

(3)     Third, the perceived risk, localised in Maiduguri, can be reduced by internal relocation within a large populous country like Nigeria. The applicant, an able-bodied adult with over 30 years of experience in the automobile business, would suffer little or no hardship in moving to say Lagos where he had worked for 28 years from 1984 to 2012.

Appeal to Board and Board’s Decision

8.  The applicant appealed against the Director’s Decision to the Board on 23 October 2017.  In the notice of appeal/petition, the applicant added that the BH have incorporated elements of Fulani herdsmen into their organisation.  He also raised a new claim that the Nigerian government is killing the Igbo people to which the applicant belongs.

9.  The Board conducted a rehearing of the NRF Claim on 30 July 2018, where the applicant gave evidence and answered the Board’s questions through an Igbo/English interpreter.  

10.  The Board dismissed the appeal on all 4 applicable grounds for non-refoulement protection.  In summary,the Board did not find the applicant a credible witness and considered his entire account to be fanciful, inconsistent and implausible. The applicant had been working in Lagos from 1984 to 2012.  The Board found it difficult to understand and accept why he would move to Maiduguri in 2013 where BH insurgency had been going on for a number of years and why when he was threatened by the BH to convert to Islam, he did not escape with his family when there were opportunities to do so.  The Board did not accept that the applicant had lived in Maiduguri for any period of time, nor had he ever been directly threatened by the BH, or that the BH had killed his wife or parents.  In any event, reasonable state protection is available having regard to the relevant COI and internal relocation to Lagos, where the applicant had lived and worked for 28 years, is a reasonable and viable option.

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 2925/2018 on 12 December 2018, the applicant applied for judicial review of the Board’s Decision without stating any proposed grounds for relief.

12.  In the supporting affirmation filed on the same date, the applicant put down the following bullet-points:

 (1)     Unreasonable finding that state protection is available;

 (2)     Unreasonable finding of ‘facts’;

 (3)     Failure to properly consider mental suffering.

13.  The applicant did not ask for an oral hearing and the Judge considered the application on paper.  The Judge dismissed the application for leave for judicial review for the reasons set out in [31] to [33] of the Form CALL-1:

“31. In a leave application, this court would consider whether there is any error of law or procedure. Whether the decisions of the TCAB and the Director were reasonable. This court would not interfere with the finding of facts unless it is obviously wrong.

32. The adjudicator had analysed the evidence in detail. He correctly pointed out the inconsistencies of the applicant’s story. The adjudicator found that the applicant was not credible. The events claimed by the applicant did not occur. There was no need for him to consider mental suffering in particular.

33.  In my view, his conclusion is reasonable.  It is consistent with the findings of the Director.  There is no error of law and procedure in both decisions.”

Appeal to Court of Appeal - grounds of appeal and submission

14.  By a notice of appeal filed herein on 20 November 2020, the applicant appealed against the refusal of leave for judicial review on the grounds that he would face hardship if he should return to Nigeria (“Ground1”); and that the Board made groundless speculations as a result of relying on non-officially recognised or hearsay new and outdated cases (“Ground 2”).

15.  On 21 May 2021, the applicant lodged written submission, by which he referred to ST v Director of Immigration (sic)[5] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, exparte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514 for the trite propositions (1) that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2) that the courts will on judicial review subject such adjudication to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; and (3) that the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his claim.

16.  The applicant appeared in person at the hearing of the appeal on 20 September 2021.  He stated that the situation in Nigeria is still volatile and chaotic and asked for more time to wait and see if the country would become stabilised.

Discussion

Court of First Instance’s role in judicial review in non-refoulement claim

17.  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 role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise 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 [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

18.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal will generally not admit fresh evidence unless the 3 requirements laid down in Ladd v Marshall[6]are met.  Nor will it normally entertain any new arguments that are fact sensitive that should have been raised in the court below.  In short, the Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2) & (4)].

Ground 1

19.  As summarised above, the NRF Claim failed on the facts at both stages of the unified screening mechanism.  The questions whether the applicant would be at risk of life or torture if he is refouled to Nigeria and, if so, whether the danger would be lowered or negated by the availability of state protection and/or reasonable internal relocation options are all questions of fact within the province of the Board (after the Director).  The applicant’s much-repeated bare assertion that he would face hardship if he should return to Nigeria is inconsistent with the findings of both the Director and the Board.  The applicant has not advanced any ground for judicial review, properly so called, that indicates any errors of law, procedural unfairness or irrationality on the part of the Board (or the Director) in reaching the negative findings of fact against him.

Ground 2

20.  As for Ground 2, the applicant has not identified what unofficial or hearsay news or outdated cases that the Board had improperly relied on and in what respects the Board had made “groundless speculations”.

21.  Turning to the written submission, there was no attempt by the applicant to elaborate on whether and, if so, how the legal principles he cited had not been honoured in the processing of the NRF Claim.

22.  In short, the applicant did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality in the findings by the Board.  That being the case, the application for leave for judicial review of the Board’s Decision was hopeless and rightly dismissed.  Nor did he in the notice of appeal or the written or oral submission 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.

23.  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

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