RE AJAEGBU MARTIN CHIAKA

CACV 289/2020

[2021] HKCA 415

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 289 OF 2020

(ON APPEAL FROM HCAL 1863/2018)

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J U D G M E N T

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Hon Yau J (giving the Judgment of the Court):

Introduction

1.  On 14 July 2020, Deputy High Court Judge K W Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 11 June 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 29 March 2017 rejecting the applicant’s non-refoulement claim. 

2.  On 23 July 2020, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The applicant is a Nigerian national.  He arrived in Hong Kong on 10 May 2009 and was permitted to remain as a visitor until 24 May 2009.  He did not depart and overstayed.  On 10 November 2015 he was arrested by the police for overstaying.  The applicant lodged a non-refoulement claim on 21 November 2015. 

4.  The applicant’s claim was based on the fear that, if he returned to Nigerian, he would be harmed or even killed by his wealthy and influential paternal uncle who had coveted his family’s land.  The factual background was succinctly summarized by the Judge at [5] – [6] of the Form CALL-1 ([2020] HKCFI 1541). 

5.  The Director assessed the applicant’s claim on all applicable grounds and by notice of decision dated 29 March 2017 rejected his application.  The applicable grounds are BOR 3 risk[1], persecution risk[2], torture risk[3], and BOR 2 risk[4].

6.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 16 May 2018, during which he was interviewed by the Board.  Due to significant inconsistencies in the applicant’s evidence that could not be explained, the Board at [38] of its decision did not accept that the applicant had been truthful in his claims and found that he had fabricated his case.  The Board rejected, in particular, the land dispute claim in its entirety. 

7.  At the Board hearing, the applicant also submitted documents to claim that it was not safe for him to return to Nigeria due to the violence against Christians by Muslims which were exacerbated by violent conflicts among militants, terrorists and security forces.  The Board accepted that there were such violent conflicts in some part of Nigeria.  It, however, noted that the problems did not affect the area where the applicant had come from and that the applicant had never been caught up in such conflicts, nor were there any evidence that his family had been facing harm because of such conflicts. 

8.  The Board found that there was no real risk of harm in the event of refoulement.  The Board also considered that internal relocation was viable.  The Board therefore dismissed the applicant’s appeal on 11 June 2018 on all the applicable grounds. 

Decision of the court below

9.  On 6 September 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  In his Form 86 and affirmation filed in support, the applicant did not specify any grounds for relief. 

10.  At the hearing on 24 December 2019 the applicant appeared in person before the Judge.  On 14 July 2020 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [14] – [17] of the Form CALL-1 ([2020] HKCFI 1541, HCAL 1863/2018) as follows:

“14. The applicant appeared before me. He confirmed that he was treated fairly before the immigration officer and the Adjudicator of the Board. His lawyer had explained the Director’s Decision to him. His friend had explained the Board’s Decision to him.

15. As to the Board’s findings, he said that he disagreed with her as she knew very little about the situations in Nigeria.

16. In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

17.  There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusion on the facts of the case.”

Appeal to this Court

11.  On 23 July 2020, the applicant filed his Notice of Appeal against the Judge’s decision.  His grounds of appeal were that:

(1)  the Judge’s decision was unfair, irrational and unreasonable in failing to direct the Board to review its decision;

(2)  the Judge failed to carefully address and consider that the Board had failed to correctly apply the law under section 8 of the Bill of Rights Ordinance[5], despite there being ample evidence that the applicant’s land dispute would result in death, and that corruption and gross human rights violations were widespread in Nigeria such that there would be no state protection, and internal relocation would not be viable;

(3)  the Director, the Board and the Judge did not properly consider and take into account that the applicant would likely be killed due to brutal deadly feuds in Nigeria. 

12.  Together with this Notice of Appeal the applicant submitted 2 media reports in relation to deaths resulting from land disputes in Nigeria, arguing that these reports supported his contention that the decision of the judge had clear elements of procedural unfairness. 

13.  Pursuant to the Court’s directions of 25 January 2021, the applicant lodged his written submissions on appeal on 8 February 2021.  In those submissions he in substance reiterated his grounds of appeal, and asked this Court to consider all the evidence adduced by him and the country of origin information to make an evaluation whether the decision of the Judge was fair and just. 

14.  The applicant, however, did not provide any details or particulars as to how the Board or the Judge fell into the errors as alleged in the Notice of Appeal. 

15.  The applicant appears in person during the appeal hearing and repeats in substance the grounds set out in the Notice of Appeal and written submissions.  He says that he will become homeless if he is to return to Nigeria and stresses that he has been telling the truth in his application. 

Legal principles

16.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of 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].  For the purpose of this appeal, the salient principles are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers 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 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. 

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. 

(3)  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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 it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A). 

Discussion

17.  As mentioned earlier, the applicant did not in his Notice of Appeal or submissions provide any particulars as to how the Board or the Judge fell into the errors alleged or any other specific potential grounds for reversing the Judge’s decision.  General assertions without particulars cannot be effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244. 

18.  In the present case, the Board, after careful and thorough analysis of the evidence, rejected the applicant’s claim that there had been land disputes between the applicant and his uncle.  The reasons were fully set out from [15] to [42] in the Decision of the Board.  The Board also found him to untruthful in other parts of his evidence as detailed from [43] to [64] in its Decision.  The Board came to the conclusion that the applicant manufactured his case to support his non-refoulement claim so as to prolong his stay in Hong Kong. 

19.  There are indeed a considerable number of material inconsistencies between the information he provided in his Non-refoulement Claim Form (“NCF”) and his evidence in the Board hearing.  Take for an example, he stated in the NCF that he had come to Hong Kong for business but said in the Board hearing that he had specifically come to Hong Kong to seek protection.  He put the blame on the interpreter who had helped him to fill in the form for making the mistake.  He, however, was not able to explain why he had stayed in Hong Kong illegally for 6 years and had not made his non-refoulement claim until he had been arrested for overstaying.  The finding of facts of the Board cannot be faulted. 

20.  It is the conclusion of the Board and the Judge that there was no real risk of harm to the applicant if he was to return to Nigeria.  Such findings are within the province of the Board and the Judge, and the court will not interfere with such assessments unless they are reversible on public law grounds. 

21.  The applicant has not advanced any valid public law grounds. 

22.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified. The Judge has applied the relevant legal principles correctly.  We cannot find any flaws in his analysis.  The Judge is plainly right to refuse leave.  There is no reasonably arguable ground to challenge the decision of the Judge. 

23.  For these reasons, this appeal is dismissed.