NWEKE UCHECHUKWU v. TORTURE CLAIMS APPEAL BOARD

Application for Leave to Apply for Judicial Review

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

Following:

1.   Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 17 November 2020 be refused; and

2.   The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.   The Applicant is a 42-year-old national of Nigeria who last arrived in Hong Kong on 1 September 2014 as a visitor and with permission to remain as such up to 20 September 2014 as extended when he did not depart and instead overstayed, and some 5 months later on 25 February 2015 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to Nigeria he would be harmed or killed by the Nigerian authorities due to his sexual orientation. He was subsequently released on recognizance pending the determination of his claim.

2.   The Applicant was born and raised as a Christian in Isu, Ebonyi State, Nigeria. While at secondary school he recognized himself to be a homosexual which he kept as a secret to others except his several sexual partners and hence never faced any issues arising therefrom while growing up notwithstanding the fact that homosexuality is regarded as illegal in Nigeria.

3.  In 2014 he borrowed a loan from one of his sexual partners Johnson for his business, but later when he failed to repay his loan, Johnson was furious which led to an argument between them and the subsequent breaking up of their relationship.

4.  On 31 August 2014 the Applicant departed Nigeria for a business trip to Hong Kong, and while there he was informed by his family in Nigeria that the police had started mass arrests of homosexuals in Lagos which then deteriorated into random killings by the police including his former sexual partner Johnson, and later some police came to his home in Nigeria looking for him, of which the Applicant suspected that Johnson might have given to them information about his sexuality, that the police subsequently also arrested his brother for interrogations, and that the village elders also started to raise questions to his parents about his sexual orientations, and when his parents refused to cooperate, those village elders then threatened to burn down their home and drive them out of the village, and so the Applicant became afraid to return to Nigeria and therefore overstayed in Hong Kong, and upon his subsequent arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 10 September 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.  By a Notice of Decision dated 30 November 2018 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 or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

6.  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 his claimed future risk of harm upon his return to Nigeria is real and foreseeable due to the absence of any past ill-treatment from the Nigerian authorities, that there is no evidence of any adverse interests of the Nigerian authorities in the Applicant over his sexual orientation other than his own speculations only, and given the multiple inconsistencies discrepancies and conflicts in the evidence and information given by him of various events in Nigeria that the Applicant’s claim was found to be unreliable and incredible that it is not accepted that he will face any risk of harm from the Nigerian police or authorities or the village elders upon his return to Nigeria that his non-refoulement claim was rejected on all applicable grounds.

7.  On 14 December 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 29 April 2019 before the Board when he gave evidence and answered questions raised of his claim by the Adjudicator for the Board, during which he proclaimed that he no longer identifies himself as homosexual, that he now loves only women and has a steady Chinese girlfriend in Hong Kong, and that he was adamant that he would not have sex with men if returned to Nigeria, but that he still fears of being harmed in Nigeria for being a homosexual in the past as well as a Christian if refouled to Nigeria.  On 17 November 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision[1] the Board accepted the Applicant’s evidence of having had sex with men when he was in Nigeria but found no reliable evidence that his sexuality had ever been revealed in Nigeria or that he had ever become a target of the police, while his conflicting evidence of the subsequent arrest of his brother and the burning down of his family home in his village were found unconvincing and unreliable, that his credibility was further undermined by his failure to raise his claim upon his first overstaying in Hong Kong until more than 5 months later and only after his arrest by the police that the Applicant was not considered a credible witness and that he had fabricated and concocted his evidence to advance a claim for non-refoulement protection, and given the fact that his sexuality had remained unknown prior to his departure from Nigeria and his subsequent conceded disavowal of homosexuality since his arrival in Hong Kong including his statement during his hearing before the Board that he would not have sex with men if returned to Nigeria and his steady relationship with his girlfriend in Hong Kong that the Board concluded that there is virtually no risk of any harm or ill‑treatment on the basis of his actual or perceived sexuality if refouled to Nigeria, while his additional claim made at the hearing of fear of being harmed for being a Christian in Nigeria is without foundation in the absence of any evidence of any specific threats or instances of harm to him in Nigeria when relevant COI show no evidence that Christians who made up half of the Nigerian population in particularly those live in the south have faced general violence or discrimination that it is not accepted that the Applicant who had lived in Lagos and other southern locations is at risk of harm due to his Christian religion if refouled to Nigeria that his claim for non-refoulement protection failed on all applicable grounds.    

9.  On 1 March 2021 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 his supporting affirmation of the same date in which he just repeated his claim of fear of being jailed or killed as a homosexual in Nigeria but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application.   

10.  By then the Applicant was also out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

11.  As the last day of the three-month period for him to file his Form 86 fell on 17 February 2021, the Applicant was therefore some 12 days late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

12.  In the Applicant’s case, while a delay of 12 days may not be considered as substantial or inordinate, for which he explained at the hearing of his application that the decision was sent to the mailbox of his landlord and that it was given to him late which accounted for the delay but of which he was unable to give any further details, which even if true cannot in my view justify the delay given the fact that the Applicant had had some 3 months to file his Form 86, but in view of the relative insignificance of the actual delay, I propose to focus on the merits, if any, of his intended application.        

13.  However, as noted above that the Applicant has failed to put forward any proper ground for his intended challenge, and given his concession to the Board during his appeal hearing that he is no longer a homosexual and has been in a steady relationship with a female in Hong Kong that any risk of him being labelled and attacked as a homosexual or gay man in his home country is no longer real.  As such, 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 merits in 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 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 also been established by both the Director and the Board in their respective decisions that the risk of harm in his claim even if real 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.                

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 all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to extend time and accordingly dismiss 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