NWAGBARA KELVIN ONYEKACHI v. TORTURE CLAIMS APPEAL BOARD

HCAL 1406/2021

[2022] HKCFI 2208

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1406 of 2021

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;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 40-year-old national of Nigeria who arrived in Hong Kong on 19 February 2015 as a visitor with permission to remain up to 5 March 2015 when he did not depart and instead overstayed, and was arrested by police more than 2 years later on 16 September 2017. 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 the terrorist group Boko Haram because he is a Christian and/or the nationalist separatist group Indigenous People of Biafra (“IPOB”) for refusing to join their group. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised as a Christian in Oduma Aninri, Enugu State, Nigeria. After completing his secondary education, his father moved the family to Gwoza in Borno State where he ran a garment business.

3.  In 2013 the Boko Haram terrorists started to launch attacks in various cities in Borno State terrorizing the Christian residents there, and on one occasion the Applicant was attacked by one of their group by punching and kicking, and was warned that next time he would be killed if he still refused to convert into a Muslim.

4.  After another attack by the Boko Haram terrorists of their neighbourhood during which many of the homes and businesses of the Christian residents were burnt and destroyed including theirs, the Applicant and his family thereafter fled to Enugu State.

5.  However, in mid-2014 the IPOB people came to his neighbourhood to recruit members for their group, and fearing that the Nigerian authorities would come after him if he joined the group or that he would be killed by the group if he refused to join them, the Applicant felt that it was no longer safe to remain in Nigeria, and so on 19 February 2015 he departed Nigeria for Hong Kong where he subsequently overstayed, and after his arrest by police more than 2 years later on 16 September 2017, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 20 April 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 15 May 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”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the Boko Haram or IPOB people upon his return to Nigeria as unlikely to materialize due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence that he had been specifically targeted by either groups or by the Nigerian authorities or that there would still be any adverse interest of any of them in him after all these years since he left the country, 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 working experience to move to other part of Nigeria away from the part of the country where Boko Haram or IPOB were active such as large cosmopolitan and financial districts like Lagos State where it would be difficult if not impossible for him to be located by anyone.

8.  On 29 May 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 30 July 2021 with his lawyer before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board and with submissions made on his behalf by his lawyer. On 23 September 2021 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board accepted the Applicant’s evidence as to his account of events occurred in Nigeria prior to his departure and his resultant fear of risk of harm from the Boko Haram or IPOB people, but found no evidence that he had been specifically targeted by either groups or of any adverse interest of the Nigerian authorities and concluded from relevant COI that it would be safe for him to relocate to other part of Nigeria away from the areas where the Boko Haram or IPOB groups were active such as the eastern regions of Enugu State in Oduma where his parents have since made their home without any incidents that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 7 October 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 in his supporting affidavit of the same date to which he just attached copies of the decision and other documents previously submitted by him for his appeal before the Board but without putting forth any proper ground for his intended challenge. As such and in the absence of any error of law or irrationality 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 for his intended challenge.

11.  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.

12.  In the Applicant’s case, the fact is that it has been correctly 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.

13.  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.

14.  Furthermore, the Applicant recently filed an affidavit on 25 May 2022 requesting to withdraw his application as the risk that caused him fear to return to his home country has now been “settled”.

15.  In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of no more fear to return to his home country, I 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