OKEKE STANLEY CHIGBOGU AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

CACV 443/2021, [2024] HKCA 163

On Appeal From [2021] HKCFI 2730

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 443 OF 2021

(ON APPEAL FROM HCAL NO 2208 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal by both applicants against the decision of Deputy High Court Judge Bruno Chan (“Judge”) on 10 September 2021[1] refusing to grant leave to the applicants to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 24 August 2018.  In that decision, the Board upheld the decisions of the Director of Immigration (“Director”) dated 11 August 2016 and 27 June 2017.

Background

2.  The 1^st applicant is a national of Nigeria born in 1973.  The 2^nd applicant was born in Hong Kong in 2013 out of wedlock between the 1^st applicant and his girlfriend, an Indonesian woman.  The 2^nd applicant initially raised a torture claim together with and based on his Indonesian mother’s claim.  His nationality and citizenship was stated as “to be confirmed” on his torture claim form dated 7 June 2013.  On his supplementary claim form dated 3 March 2016, it was stated that the 2^nd applicant’s nationality and citizenship was Nigerian and it is claimed to be supported by his passport.  The 2^nd applicant’s nationality as a Nigerian appeared to be accepted by the Board as there was no discussion or disagreement in its decision dated 24 August 2018.

3.  The 1^st applicant entered Hong Kong as a visitor on the strength of his Nigerian passport on 23 October 2003 and was permitted to stay until 13 November 2003.  He overstayed and was arrested by the police over 8 years later on 13 May 2012.  The 1^st applicant raised his torture claim by way of written representations dated 16 May 2012 and by his formal torture claim form dated 28 June 2013.  His claim was made on the basis that if he returned to Nigeria, he would be harmed or killed by his family members due to a monetary dispute, in which he was unable to repay money borrowed from leasing family land because his business partner had absconded.  The factual background of the 1^st applicant’s claim was set out at [13] to [24] of the Board’s decision dated 24 August 2018.

4.  The 2^nd applicant was born on 28 February 2013 in Hong Kong.  On 2 April 2013, the 2^nd applicant’s Indonesian mother lodged a non-refoulement protection claim on his behalf based on her own claim, namely on the ground of torture risk in Indonesia due to her extramarital relationship and illegitimate child.  The 2^nd applicant’s torture claim form dated 7 June 2013 was prepared with legal assistance.

5.  By notice of decision dated 16 July 2013, the Director assessed the Indonesian mother’s and the 2^nd applicant’s claims in relation to torture risk[2] and rejected them.

6.  The Indonesian mother and the 2^nd applicant jointly appealed to the Board against the Director’s decision dated 16 July 2013.  There was no oral hearing.  For the purpose of the determination, the Board found the Indonesian mother’s account of events to be truthful.  However, it found that there was no evidence of authorities or state involvement and that state protection and internal relocation would be available to them.  In conclusion, the Board held that there was no real risk of harm for the Indonesian mother and the 2^nd applicant in the event of refoulement to Indonesia.  By its written decision dated 18 February 2014, the Board dismissed the Indonesian mother’s and the 2^nd applicant’s appeals in respect of the ground of torture risk and confirmed the Director’s decision dated 16 July 2013.  From the papers, it appears that the 2^nd applicant does not seek to challenge the Board’s decision dated 18 February 2014.

7.  By notice of decision dated 6 September 2013, the Director assessed the 1^st applicant’s claim in relation to torture risk and determined it against him.

8.  The 1^st applicant appealed to the Board against the Director’s decision dated 6 September 2013.  By its written decision dated 4 June 2014, the Board dismissed the 1^st applicant’s appeal in respect of the ground of torture risk and confirmed the Director’s decision dated 6 September 2013.  From the papers, it appears that the 1^st applicant does not seek to challenge the Board’s decision dated 4 June 2014.

9.  By written representation of 23 November 2015, the Indonesian mother gave consent to the 1^st applicant to raise a non-refoulement claim on behalf of the 2^nd applicant, and she subsequently withdrew her own claim and left Hong Kong.  Hence, the 2^nd applicant was included in the application of the 1^st applicant.  Both the 1^st and 2^nd applicants submitted their respective supplementary claim forms dated 3 March 2016, where the 1^st applicant annexed copies of supporting documents, namely a memorandum of understanding and a deed of assignment, and the 2^nd applicant sought to rely on the basis of his father’s claim.

10.  By notice of decision dated 11 August 2016, the Director assessed the applicants’ claims in relation to BOR 3 risk[3] and persecution risk[4] and rejected them.

11.  By letter dated 12 June 2017, the Director invited the 1^st applicant to submit any additional facts relevant to BOR 2 risk[5] in his and the 2^nd applicant’s claims by 26 June 2017.  There was no reply received by the Director by the deadline.  By notice of decision dated 27 June 2017, the Director assessed the applicants’ claims in relation to BOR 2 risk and rejected them.

12.  As the applicants had already lodged an appeal to the Board against the Director’s decision dated 11 August 2016 and it was pending determination, there was no need to file a separate and further notice of petition/ appeal against the Director’s decision dated 27 June 2017.  The Board decided to proceed to consider the applicants’ claims against both Director’s decisions dated 11 August 2016 and 27 June 2017.  Three oral hearings were held on 30 November 2017, 31 January 2018 and 19 April 2018 respectively, during which the 1^st applicant, on behalf of himself and the 2^nd applicant, gave evidence and answered questions from the Board.  Aside from giving further evidence on his claim about monetary dispute with family members, the 1^st applicant gave evidence on his new claim in relation to his political involvement with the Indigenous People of Biafra (“IPOB”).  The 1^st applicant further provided two typed pages of political statements in relation to IPOB, three photographs of people, including the 1^st applicant, bearing a Biafra flag at some events, and a letter of recommendation issued by IPOB of Germany.  At a further hearing, the Board, together with a representative from the Immigration Department, invited the 1^st applicant to explain his executive role of secretary of the Kam Tin branch and functioning of the IPOB group in Hong Kong and to explain about the late submission of this new claim.  The 1^st applicant said that he had been involved in the IPOB since late 2015 but did not raise this with the Immigration Department at the interview in June 2016, since he had hoped the problems would not continue.

13.  The Board found no credibility in the 1^st applicant’s claim of fearing harm or death from his family due to monetary dispute.  It found that the family had already sold, and not leased, the land according to the documents produced by him, that he offered no intelligible reply to explain why he said that he had no contact at all with his family after 2012 when he said that he recently obtained the documents from his full brother at the same interview with the Immigration Department.  The Board noted that the 1^st applicant made little effort to locate his absconded business partner whom appeared to be the stem of all his problems, and that he failed to raise any claim for protection until he was arrested almost 9 years after he came to Hong Kong.

14.  Moreover, the Board also did not find the 1^st applicant’s claim for his involvement with the IPOB to be credible either.  Having considered the 1^st applicant’s evidence and the COI, the Board found that, inter alia, he was mistaken on the years of important events and his involvement in the IPOB, he did not know the names of the other members in the photographs he produced and he was vague and lacked details of his attendances and overall involvement with the IPOB.  None of the 1^st applicant’s claims could be corroborated by independently verifiable evidence.  As such, the Board found the 1^st applicant’s involvement with the IPOB to be minimal and it did not accept that the 1^st applicant had any profile of being a leader or prominent member of the IPOB.  As regards the photographs produced by the applicant, the Board concluded that the applicant had attended the rallies simply to have his photograph taken, not because of any commitment to the IPOB cause.  Nor did the Board find that the letter purportedly from the IPOB Directorate in Germany was reliable.

15.  The Board proceeded to consider the risk of harm faced by the 1^st applicant if he was refouled to Nigeria.  It did not accept his claim that his family threatened to harm or kill him due to monetary dispute was credible or genuine.  The Board further did not accept that the alleged nature and extent of his involvement with the IPOB to be credible.  It did not accept that the 1^st applicant was a high profile member of the IPOB that would be identified by or would attract adverse attention of the state if he returned to Nigeria, or that the state would target known or suspected members of the IPOB returning from overseas.  Hence, the Board found that the 1^st applicant failed to show any genuine and substantial risk of harm.  As for the 2^nd applicant, the Board made the same findings in relation to his BOR 3 risk, persecution risk and BOR 2 risk as he had made no separate or additional claims of his own, and his claims were based solely on his father’s claims.

16.  In conclusion, the Board held that there was no real risk of harm for the applicants in the event of refoulement to Nigeria.  By its written decision dated 24 August 2018, the Board dismissed the applicants’ appeals in respect of all the applicable grounds and confirmed the Director’s decisions dated 11 August 2016 and 27 June 2017.

The Judge’s decision in the court below

17.  On 11 October 2018, the applicants filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision dated 24 August 2018.  They did not specify any ground for judicial review in the Form 86, but they stated that the Board had disregarded the 1^st applicant’s letter of recommendation issued by the IPOB.  In the accompanying affirmation, the 1^st applicant stated that the Board had disregarded the fact that he was a persecuted member of the IPOB and annexed a copy of the recommendation letter dated 8 February 2018 confirming that he was the secretary of the Kam Tin/Yuen Long Zone of the Hong Kong IPOB Family.

18.  The Judge considered the application on the basis of the documents alone as the applicants did not request an oral hearing.  On 10 September 2021, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [15] to [23] of the Form CALL-1 as follows:

“ 15. This letter which was dated 9 February 2018 and addressed to the Board allegedly by the Directorate of State of the Indigenous People of Biafra had in fact been considered and rejected by the Board for the reasons detailed in paragraphs 58 – 61 of its decision, and of which I do not find any error of law committed by the Board which had had the benefit of hearing A1 in evidence not just in one but three oral hearings, and whose claims based on alleged threats arose from his family dispute or from his involvement in the IPOB Movement in Hong Kong had both been rejected essentially on its adverse findings on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 11 – 118 of its decision, and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge those findings of the Board.

16. 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.

17. Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm from A1’s family members in the Applicants’ claim if true is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Nigeria, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

18. 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 Applicants’ claim.

19. I am of course mindful of the fact that A2 is a minor of 8 years old and not legally represented in these proceedings as required by Order 80 Rule 2 of the Rules of High Court, and that it would be necessary to separately consider and examine whether his claim had also been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness in proceedings of this nature, and to see whether there are underlying matters that may support potential minor-specific non-refoulement bases which had not been properly advanced to the Board due to lack of legal representation in the appeal before the Board, when the proper approach of which has been considered by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971 and held that claims of minor children even if based on the same set of primary facts are separate from the claims of their parents and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

20 In the present case, the claim of A2 was premised fundamentally on his father’s claim of harm from sources which have however no knowledge of him at all and hence no evidence of any threats from anyone directed against A2. Above all, the Board as noted above after considering the evidence of his father given during 3 oral hearings in fact disbelieved him and rejected the credibility of his claims upon which A2’s was based, and at his age it is not a case that A2 could have given any evidence in relation to his father’s claims anyway.

21. Having looked at the evidence filed in this application, I do not see any material that may give rise to any concern that there may be non-refoulement grounds which relate specifically to A2 that had not been advanced to the Board or considered by it due to lack of legal representation before the Board.

22. For these reasons I do not find A2’s intended judicial review to have any merits, I shall therefore treat the absence of legal representation for him in these proceedings as mere irregularity as it would not serve any useful purpose for him to be so represented given the lack of merits in his intended application.

23. In the premises, and for the reasons given, I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and I accordingly refuse their leave application.”

Appeal to this Court

19.  On 16 September 2021, the applicants filed their Notice of Appeal against the Judge’s decision.  Their grounds of appeal include the following statements:-

a. “Threat to life does not come from only on[e] direction.”

b. “There is great insecurity in the country that even the police posts and military barracks are not spared. Therefore, anybody can commission anyone to kill for him.”

c. “The importance of Law in my culture cannot be wished away and Lost of it (sic) is not easily forgiven.”

20.  The 1^st applicant, for himself and on behalf of the 2^nd applicant, lodged written submissions on 3 January 2022.  Those submissions consist of the 1^st applicant’s reiteration of his danger of being a member of IPOB in Nigeria, the high level of insecurity in Nigeria, the ongoing family land problem, and the complaint that all of these factors were not thoroughly considered by the Judge.  The submissions also attach three photographs purportedly of the 1^st applicant attending IPOB events and a 5-page printout of 4 online articles.  Three of the online articles issued in December 2021 concern insecurity in Nigeria, killings of Nigerian soldiers and a report about IPOB members being killed.  The fourth online article concerns news about Mazi Nnamdi Kanu, the leader of the IPOB.

21.  The 1^st applicant, for himself and on behalf of the 2^nd applicant, has given consent in writing for these appeals to be disposed of on paper without an oral hearing, and we shall accordingly determine the appeals on the basis of the available documents and materials.

Discussion

The 1^st Applicant’s appeal

22.  In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

23.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because it did not find the 1^st applicant’s claims about threats from family members due to monetary dispute or involvement with the IPOB to be genuine or credible.  The Board held three oral hearings for the 1^st applicant to give his evidence and its assessment was very thorough and detailed as recorded in its decision.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave.  As to the 1^st applicant’s other purported grounds of appeal and written submissions, they consist of mere general statements.  They do not constitute viable grounds of appeal: see Re Salim Ahmed [2020] HKCA 244 at [20].

24.  The 1^st applicant appears to raise a new ground of alleged insecurity level in Nigeria, where residents should defend themselves from bandits in Katsina State and Nigerians soldiers had been targeted and killed by terrorists according to the online articles submitted together with the 1^st applicant’s written submissions.  The sources appear to have been published after the Judge’s decision.  As the 1^st applicant had not lived in Nigeria since 2003, he appears to rely merely on such online articles without any further reliable sources of information or personal experience in support.  From the available papers, the 1^st applicant never indicated that he would join the military upon refoulement or that he would live in Katsina State, which does not appear to be his birth place of Imo State or his alleged last place of residence in Nigeria.  In light of the Board’s finding on the applicant’s credibility and the particulars previously provided by the 1^st applicant, we are of the view that there are no special circumstances that should incline this Court to consider this new ground.

25.  Equally, the 1^st applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  We are not satisfied that there is any error in the Judge’s decision.

The 2^nd Applicant’s appeal

26.  The 2^nd applicant was aged about 5 at the time of the Board’s decision, and is now aged 11.  The proper approach to non-refoulement claims of children, such as the 2^nd applicant’s case, has been considered by this court in Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971 and in Re Jasvir Singh & others [2021] HKCA 53.  We shall not repeat everything that has been said in those cases.  Suffice it for present purposes to note that, first, non-refoulement claims by children, even if based on the same set of primary facts, are separate from the claims advanced by their parents and need to be considered as such having regard to the personal circumstances of the children.  Ill treatment which does not reach a level constituting persecution in the case of an adult may do so in the case of a child.[6]

27.  Secondly, when dealing with an application by a non-legally represented minor for leave to apply for judicial review, the court needs to examine, in the context of the requisite high standard of fairness, whether the minor’s own non-refoulment claim has been properly considered by the Board as a separate claim having regard to his own personal circumstances.  In so doing, the court should consider whether there exist matters that may provide potential minor-specific bases for a non-refoulement claim which have not been advanced or properly advanced before the Board due to the absence of legal representation.[7]

28.  In this case, the 2^nd applicant’s claim was considered by the Board at the same hearing as the 1^st applicant’s appeal.  The Board had separately considered the 2^nd applicant’s claim at [124] in its decision dated 24 August 2018.  Given the Board had confirmed that no separate or additional claims were made for the 2^nd applicant and the 2^nd applicant’s claim was based solely on the 1^st applicant’s claim, the Board made the same findings in relation to BOR 3, persecution and BOR 2 risks for the 2^nd applicant as it did for the 1^st applicant.  It did not find any risk of harm to be faced by the 2^nd applicant.

29.  The torture claim form and supplementary claim form of the 2^nd applicant were completed with legal assistance.  From the available materials, we do not find that there are any circumstances specific to the 2^nd applicant as a minor or that any level of harm would amount to persecution in the eyes of the minor.  The Board had given separate consideration to the 2^nd applicant’s claim, although it eventually found that his claim fell to be rejected with that of his father.  There was no suggestion in the legally prepared claim forms that there were any risks to the 2^nd applicant other than those based on his father’s claims.  The Judge also did not see any material that might give rise to any concern that there might be non-refoulement grounds relating specifically to the 2^nd applicant that had not been advanced to or considered by the Board due to the lack of legal representation before the Board.

30.  Like the Judge whose analysis relating to the 2^nd applicant is set out in [19] to [22] of his decision quoted above, we do not find any procedural unfairness in the proceedings before the Board, notwithstanding the lack of legal representation for the 2^nd applicant who was a minor of tender age.

31.  Accordingly, there being no reason to think that the 2^nd applicant could raise any reasonably arguable ground for judicial review of the Board’s decision against him, we shall follow the course adopted in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, Jasvir Singh [2021] HKCA 53, Paglingayen Rosalyn Ringor [2021] HKCA 84, and Bazeer Ahamed Sanfar & others v Torture Claims Appeal Board/ Non-refoulement Claims Petition Office [2022] HKCA 348, and dismiss his appeal, treating the non-compliance with Order 80 rule 2 of the Rules of the High Court (in that he has not acted by a next friend acting by a solicitor) as a mere irregularity that does not nullify the proceedings in the Court of First Instance or in this Court.

Order

32.  For the above reasons, the applicants’ appeals are dismissed.

[1]  [2021] HKCFI 2730.

[2]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[3]  This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[4]  This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5]  This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[6]  Fabio Arlyn Timogan, §34; Jasvir Singh, §30.

[7]  Fabio Arlyn Timogan at §§47-54; Re Jasvir Singh, §31.