NNAJI CHARLES ANAYO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 844/2017

[2018] HKCFI 2457

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 844 of 2017

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 the Applicant in open court;

Leave to apply for judicial review granted.

Observations for the Applicant:

1.  The applicant is a 32-year-old national of Nigeria who last arrived in Hong Kong on 25 March 2010 with permission to remain as a visitor up to 15 April 2010 when he did not depart and instead overstayed and was arrested by police on 15 September 2014.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to Nigeria he would be harmed or killed by his business partners and their people.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Enugu State, Nigeria.  After leaving school he worked in various companies in Lagos.  In May 2009 he started a clothing and mobile phone business with two friends in Lagos with each making the same cash contribution towards the company’s capital, but his friends would be dormant partners while the applicant was to run the company including buying and selling goods of which he had asked his brother to help as he had to under frequent business trips to Hong Kong to purchase goods.

3.  Initially the business ran smoothly and was successful, but in October 2009 when one of the customers failed to make payments for goods already sold by the applicant’s brother to that customer on credit, and when the customer had subsequently disappeared and as a result the company suffered a serious loss, his two business partners were displeased and pressed the applicant for repayment of their share of the capital, and when the applicant ignored their demands and were often away on business trips, they started to harass and threaten his brother of which his brother had reported to the police but nothing appeared to have been done by them.

4.  One day in about May 2012 when the applicant was in Hong Kong purchasing goods, he heard from one of his neighbours that his two business partners had come to his brother’s home with several gangsters armed with knives and bars to demand that they be refunded their full share of the capital, and when his brother was unable to do so, they proceed to beat him up with their weapons and eventually killed him.  As a result the applicant became fearful that he would also be killed if he were to return to Nigeria, and therefore overstayed in Hong Kong and subsequently lodged his non-refoulement claim, for which he later completed a Non-refoulement Claim Form (“NCF”) on 3 November 2015 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.

5.  By a Notice of Decision dated 8 March 2016 the Director of Immigration (“the 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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 assessed the risk of harm from his business partners as low due to the absence of past ill-treatment from them which indicates a low future risk to the applicant upon his return to Nigeria, that his problem with his business partners was a private business dispute that in the absence of 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 181 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 work experience to move to other areas away from his home district such as Abuja where it would be difficult if not impossible for his business partners to locate him.

7.  By a Notice of Further Decision dated 16 January 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

8.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which he filed on 21 March 2016, and for which the Board listed his appeal for an oral hearing on 15 February 2017, but the applicant did not appear at the scheduled time, and several attempts by the Board’s staff to contact him on that day by telephone were also without success.

9.  By a notice dated the same day of 15 February 2017 sent by the Board under section 15 of Schedule 1A of the Immigration Ordinance, the applicant was informed that unless within seven days he provided a satisfactory written explanation of his failure to attend the hearing, the Board would determine his appeal in his absence.  The applicant did not provide any explanation for his absence, and so the Board proceeded to determine the appeal in his absence.   

10.  By a decision dated 20 April 2017 the Board dismissed the appeal on all applicable grounds for the following reasons:

“ 8. It is incumbent upon the Appellant to satisfy me that there is a real risk or chance or substantial grounds for believing that he will suffer the harm he claims to fear at the hands of his creditor if he returns to the Home Country by reason of his inability to repay the debt owed to his creditor.

9. The Appellant has described his account of harm in the Non-refoulement Claim Form dated 3 November 2015 that he had submitted to the Immigration Department.

10. However, I am unable to determine the credibility of his allegations in view of his failure to attend the Hearing. In the absence of oral evidence from the Appellant, I am unable to determine whether there is a real risk or chance or substantial grounds for believing that he will suffer the harm he claims to fear if he returns to the Home Country. In the absence of oral evidence from the Appellant, the country of origin information in respect of the Home Country does not by itself demonstrate that the Appellant personally will face a risk of harm warranting non-refoulement protection.

11. Pursuant to Section 23(1) of Schedule 1A to the Ordinance and paragraph 22 of the Petition Guide, the Board affirms the Director’s Decisions of 8 March 2016 and 16 January 2017.

12. The appeal/petition is accordingly dismissed on all applicable grounds.”

11.  On 3 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward various grounds for his intended challenge which can be summarized as follows:

(1)  that their decisions to reject his claim on the basis that his problem with his former business partners was a private money dispute were unreasonable or unfair;

(2)  that their finding that state or police protection would be available to him was wrong without taking into account that the gangsters sent to threaten him had killed his brother and were not afraid of the government or the police;

(3)  that they failed to take into account of the current unstable situation in Nigeria and that the applicant will face all sorts of threats and danger if he is to return to Nigeria; and

(4)  that they failed to take into account that there is now sectarian violence from various insurgents and militants in Nigeria when they considered in their decisions that it would be safe for the applicant to return to Nigeria.  

12.  Whilst some of these grounds may appear to me just vague assertions of the applicant, they seem to make the point that there were insufficient reasons to support the Board’s decision that he would not be subjected to harm if he were to be refouled to Nigeria in view of his brother’s death at the hands of gangsters which the state or police were unable to protect or from the violence from insurgents and militants in Nigeria.   

13.  In its decision the Board dismissed the applicant’s appeal because it was unable to determine his credibility due to his failure to attend the hearing, and that in the absence of oral evidence from him it was unable to determine whether there is a real risk or chance or substantial grounds for believing that he will suffer the harm he claims to fear if he returns to Nigeria.  This is notwithstanding that the Board had taken into account of the applicant’s claim as stated in his NCF and the COI in respect of Nigeria in its consideration of the appeal.

14.  In Re Hidayah [2018] HKCA 595, where the Board dismissed the applicant’s appeal on the same basis that it was unable to determine her credibility due to her failure to attend the hearing, the Court of Appeal granted leave to the applicant to judicially review the Board’s decision on the ground that the Board had failed to give or had given insufficient reasons for its decision and stated in its judgment as follows:

“ 15. The Board decided the appeal against the applicant because it was unable to determine her credibility due to her failure to attend the hearing, and, in the absence of oral evidence, it was unable to determine whether there was a real risk or there were substantial grounds for believing that the applicant would suffer the harm she claimed to fear if she were to return to Indonesia. This is notwithstanding the Board had, in considering the appeal, taken into account the materials in the hearing bundle supplied by the Director (see [10] of the Board’s decision). There was no elaboration on why the Board’s inability to determine the credibility of the claim and whether the claimed fear of harm was well-founded should lead to a dismissal of the appeal. As we understand the Board’s reasons, it had not made any finding, and there was no adverse finding, on the credibility of the applicant’s case or on whether there was a basis for the claimed fear of harm. Although an applicant bears the burden of satisfying the Board that the claimed fear and risk is well-founded, if no adverse finding of credibility could be made on an applicant’s case, the board would have to proceed to analyse and assess his claim against all applicable grounds on the basis that his case is plausible.”

15.  Similarly, in the present case as the Board did not make any adverse finding against the applicant’s credibility, it should have proceeded to analyze and assess his case under all applicable grounds on the basis that his claim of fear of harm from his business partners is plausible, but which the Board did not, nor did it explain why his claim as set out in his NCF was not accepted.

16.  In the premises I am satisfied that the applicant has an arguable case that the Board had failed to give or give sufficient reasons in its decision for rejecting his claim, and accordingly I grant leave to the applicant to apply for judicial review of its decision.

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