NWALI JOHN KENNEDY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1842/2019

[2024] HKCFI 3351

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1842 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Mr Nwali John Kennedy (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 8 May 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 31 October 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is a Nigerian. He was born on 1 January 1970 in Enugu State, Nigeria. He is a Christian. He received 12 years of education and had 20 years of work experience as a farmer.

The Claim

3.  The Applicant relied on the following facts for his claim. He claimed that he had been a farmer for over 20 years in Nigeria. The militant group, the Fulani Herdsmen (also known as Fulani militia) who had an affiliation with the Islamist group, Boko Haram, invaded the area near his home in early 2015 and killed the Applicant’s father and younger brother. The Applicant managed to run away but was injured while fleeing to the woods (“Incident 1”).

4.  About two months after Incident 1, the Applicant was staying at his home when the same group of Fulani Herdsmen approached him with rifles (“Incident 2”). The Applicant managed to escape through the backdoor.

5.  The Applicant reported both Incidents to the Uwani Police Station but was told that there was nothing they could do.

6.  With the help of an agent, the Applicant fled to China in April 2015 and from China sneaked into Hong Kong illegally in May 2015. He claimed that he would be harmed or killed by the Fulani Herdsmen if he were returned to Nigeria.

Procedural history

7.  The Applicant arrived in Hong Kong on 4 May 2015 illegally. He was arrested by the police on 25 July 2018. By a written representation of 27 July 2018, the Applicant lodged the Claim.

8.  The Director had considered the Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“torture risk”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”) (“BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3 risk”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

9.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

10.  On 2 July 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed his supporting affidavit on the same day (“Supporting Affidavit”). In the Form 86, the Applicant named the USM as the proposed respondent and the Board as interested party.

11.  The USM is the mechanism adopted by the Director in screening non-refoulement claims. It is not a decision maker and thus not a proper respondent to a judicial review. In the Supporting Affidavit, the Applicant exhibited the Board’s Decision and the hearing bundle for hearing before the Board. It is clear that the Applicant intended to seek judicial review against the Board’s Decision in this application. In such case, the proper respondent for the Applicant’s intended judicial review should be the Board. I proceed with this application on the basis that it is an application for leave for judicial review against the Board’s Decision.

The DOI Decision

12.  The Director identified several issues with the Applicant’s credibility and noted that even if his case were true, the Applicant had no dispute with the Fulani Herdsmen before Incident 1 and there was nothing to suggest that the Fulani Herdsmen were targeting the Applicant or his family. The Applicant’s father and brother were merely 2 of the innocent victims of predominant herders-farmers violent clashes.

13.  Even assuming that the Applicant’s allegation of the police’s inaction was true, the Director was of the view that the mishap of individual officer or police station could not represent the stance of the whole Nigerian Government that they would tolerate the mishap of this officer and would not take action against those Fulani Herdsmen threatening the Applicant for their illicit acts.

14.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that reasonable state protection would be available to the Applicant, if necessary.

15.  The Director further found that the Applicant’s feared threat was a localized one and internal relocation in Nigeria would be viable. If the Applicant moved to Lagos or Ibadan, the Fulani Herdsmen would have great difficulty in locating him. After considering his age and work experience, the Director found that it would not be unduly harsh to expect him to relocate and lead a normal life.

16.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

17.  After considering the Applicant’s claims including his written evidence, the record of his interview, his notice of appeal and his oral evidence given at the hearing before the Board, the Board formed the view that the Applicant was not a reliable witness.

18.  In §§5-49 of the Board’s Decision, the Board discussed in some details evidence given by the Applicant at different stages of the non-refoulement proceedings and its analysis of the same leading to the Board reaching the aforesaid conclusion.

19.  The Board found that there were no substantial grounds to believe that the Applicant faced a real risk of being subjected to torture risk or BOR 3 risk or the Applicant faced a risk of being arbitrarily deprived of his life in violation of BOR 2. The Board also did not accept that the Applicant had a well-founded fear for persecution risk.

20.  The Board went on to find that, even if the events relied on by the Applicant were true, the Applicant could safely relocate to other parts of Nigeria to avoid the alleged risks from the Fulani Herdsmen (or other affiliated organizations such as Boko Haram or other Islamic extremist groups). The Board held that with his age, his past history of relocating to Hong Kong, work experience and resourcefulness, it would not be unduly harsh to expect the Applicant to relocate to other cities such as Lagos, Ibadan or Port Harcourt if he returned to Nigeria.

21.  The Board found that the Applicant had failed to establish his case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

22.  In a judicial review, the court does not step into the shoes of the decision makers.

23.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board”.

24.  In Po Fun Chan v Winnie Cheung (supra), the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

25.  The Applicant did not attend the court hearing scheduled for 24 October 2024 despite a notice of hearing having been sent to him on 8 October 2024 at his address stated in the Form 86. The Applicant also did not respond to a letter previously sent to him by the court on 22 August 2024. In such case, I decided to proceed with this application according to papers already placed before the court.

26.  The Applicant did not advance any grounds for his intended judicial review in the Form 86. In the Supporting Affidavit, the Applicant only exhibited the Board’s Decision and the hearing bundle for hearing before the Board without other supporting documents.

27.  No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affidavit. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

28.  Having rigorously examined the Board’s Decision and the DOI Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

29.  The Board was of the view that a number of aspects of the Applicant’s claims were confused and inconsistent over time and far from convincing and there were a number of significant irregularities in his evidence about important aspects of his claims about past events in Nigeria. The Board found the Applicant’s evidence unreliable. The Board considered that the Applicant’s evidence about what occurred to him and his family in Nigeria was embellished and exaggerated and fabricated in part to create a claim to be owed protection. The Board did not accept that the Applicant or any member of his family was ever subjected to harm or threatened with harm by the Fulani Herdsmen or Boko Haram or any other Islamic group or person in Nigeria. The Board also did not accept that the Applicant was a person of adverse interest to any person or group, including the Fulani Herdsmen or Boko Haram, at the time he departed Nigeria or that he had since become a person of adverse interest to any person or group in Nigeria. The Board further found that internal relocation would be viable to the Applicant upon his return to Nigeria.

30.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection for any of the torture risk, BOR 2 risk, BOR 3 risk or persecution risk under the USM. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such finding involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review has no realistic prospects of success.

Conclusion

31.  In the premise and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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