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HCAL 1514/2018
[2021] HKCFI 3602
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1514 of 2018
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Karimou Issa Bachirou |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office
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Putative
Respondent |
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and |
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Director of Immigration |
Putative
Interested Party |
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Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge P. Li:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
1. The applicant came to Hong Kong as a visitor on 17/6/2014[1]. He was allowed to stay until 1/7/2014. He overstayed until 19/6/2015 when he surrendered to the Immigration Department. He filed the non-refoulement claim of this case on 17/7/2015.
A. Background
2. The applicant was a national of Benin. He also had citizenship in Nigeria. He was born on 14/6/1981 at Djougou, Benin. The whole family moved to Nigeria in 1984. He was single. He was a Christian. His mother lived in Nigeria. He received education for 6 years. He was in business from 2000 to 2005 selling plastics. He was supported by his father after 2005. He did not joint any organization in Benin and Nigeria.
3. Before he was born, his father inherited a plot of land from his grandfather. In 2011, his uncle claimed ownership of the plot.
4. Around Christmas 2012, when the whole family went back to Benin for Christmas, his uncle and some men intruded his home. His uncle shot dead his father and sister. When he and his mother heard the gun shots, they escaped and went back to the family house in Nigeria. It was an eight-hour-bus trip. Since then, he inherited the plot as he was the only son in the family. He reported the shooting to the police in Nigeria.
5. One afternoon in February 2013, his uncle called and threatened to kill him. Since then, there were 5 occasions that gangsters looked for him at his home in Nigeria. He was not at home on all occasions. His mother also managed to escape. They did not damage his home. He did not report to the police as they could not protect him.
6. Around December 2013, a stranger called telling him to leave Nigeria. He thought this stranger was sent by his uncle. He left home and stayed at a hotel in Osisioma, Nigeria for 4 months.
7. Around June 2014, after he obtained his Beninese passport and a visa to China, he left Benin and went back to Nigeria by bus. On the same day, he left Nigeria by air to China with the financial support from his father’s friends. There was no problem during his departure from Benin and Nigeria.
8. He came to Hong Kong on 17/6/2014, he told the officer that he was in Hong Kong for business. He was scared to tell the true intention. He overstayed for a year until 19/6/2015 before he surrendered to the Immigration Department.
9. He filed his claim on 17/7/2015. He was scared and did not know what to do earlier.
10. He had no confidence in the police in Benin or Nigeria. His uncle would kill him if he returned to Nigeria. His uncle would be able to locate him in either country. His mother was not attacked by his uncle in Nigeria.
The Decision of the Director
11. The Director rejected his claim on 29/7/2016. The Director concluded that the risk of harm was low. The reasons were as follows:
(a) Although his father and sister were killed by his uncle. He and his mother managed to escape to Nigeria. Since then, there were gangsters intruding his home but he was not located or injured. His mother was not attacked either. His home was not damaged. His uncle did not inflict harm on him in all incidents. He was not targeted despite there were ample chances. There was no imminent danger from his uncle.
(b) He continued to stay at his home even after the gangsters looked for him on 5 occasions. It was only his speculation that the unknown man who advised him to leave was sent by his uncle. Had there been any intention to kill, his uncle had no reason to tell him to leave Nigeria as the unknown man did.
(c) He returned to Benin and stayed there for 2 months waiting for his visa to China. There was no evidence that his uncle had taken any action to locate him during this period.
(d) After he came to Hong Kong, his uncle had not attacked his mother or put pressure on her. This indicated that his uncle did not have any more interest in him. His uncle did not intend to kill him.
(e) There was no evidence that the conduct of his uncle was instigated or connived by any government official. It was a private land dispute. It was his choice not to report to the police in Benin. It was not that the Benin police did not take any action.
(f) He did not report the conduct of the gangsters to the Nigerian police. There was no evidence that the Nigerian police refused or were unable to deal with the matter if it was reported to them.
(g) He was able to leave and return to Benin and Nigeria on several occasions. He was not targeted by the authority of either country.
(h) The applicant had delayed filing his claim until 17/7/2015 after he entered Hong Kong on 1/7/2014. This was inconsistent with a genuine fear of harm.
(i) The Director accepted that there were serious corrupt practices at all levels in Nigeria. There were violations of human rights. On the other hand, there was on-going reform which tackled corruption and improved efficiency in the police. The government of Nigeria had adopted measures to monitor the conduct of police. Complaint channels were set up for lodging complaints.[2] There were other government mechanisms [3] set up to deal with police abuses and corruption. There was reasonable State protection in Nigeria.
(j) The law in Nigeria permits internal movement. Nigeria was a large and populated country of 181 million people. Lagos was a viable alternative for the applicant. He was safe for 4 months living at a hotel in Osisioma. This showed that his uncle was not able to locate him in Nigeria. It would not be unreasonable for him to relocate.
(k) The Director was also satisfied that there was State protection in Benin. In fact, the applicant had chosen not to inform the police in Benin.
12. The Director dismissed his claim on persecution risk, torture risk and BOR 3 risk on 29/7/2016. The Director further dismissed his claim on BOR 2 risk on 28/9/2017.
The Decision of TCAB
13. The adjudicator held a hearing on 24/4/2018. The adjudicator found that the applicant failed to prove the events before he left Benin/Nigeria for China. The story lacked convincing detail and was unlikely. The adjudicator pointed out the following reasons for rejecting the claim on 28/6/2018:[4]
(a) The applicant did not surrender to the Immigration Department until overstaying for about a year. He then filed his claim. This fact damaged his credibility.[5]
(b) The land dispute existed before the applicant was born. It only became a problem in 2011 when he was 30 years old. There was no explanation for this delayed problem.
(c) In relation to the incident when his father was shot dead, the evidence about how he and his mother escaped from the uncle’s gang was sketchy. Given that the applicant was the one who would inherit the land, he should be targeted by the uncle’s gang. There was no detail of how they managed to escape.
(d) The applicant and his mother escaped from Djougou to Osisioma by an eight-hour-bus trip.[6] The adjudicator found that the distance between the two cities was around 1,000 km. If what the applicant said was accurate, the bus had to travel at 125 kph non-stop in order to cover that distance, not to mention that it had to stop over at the border. The adjudicator found the evidence unreliable.
(e) The adjudicator also doubted the applicant’s evidence that he could get from Lagos to Djougou in 45 minutes. [7]
(f) The applicant learned from his mother that there were gangs intruding his home on 5 occasions. He assumed that the gangs were sent by his uncle. His mother did not encounter these gangs as she also escaped. His mother was never attacked by any gang after the applicant left Nigeria. The applicant’s assumption was not convincing.
(g) The applicant assumed that the unknown man on the phone, who told him to leave Nigeria, was sent by his uncle. The adjudicator found this unconvincing. His uncle should be more kin to locate the applicant instead of asking him to leave.
14. The adjudicator had considered various COI. He pointed out that the police in Benin were inadequately equipped and poorly maintained. Impunity was a problem. However, there were other avenues for complaint by a citizen. There was a working police and judicial system providing State protection. Likewise, the criminal justice system was operating even though the police were corrupt and the judiciary was weak.
15. Given the above, the adjudicator did not accept that the events had caused physical and mental injuries to the applicant. The risk of torture was not inflicted for the purposes stated in the definition of torture under s.37U of the Immigration Ordinance.
16. For BOR 2 and 3, given the evidence, the adjudicator found that there was reasonable State protection. There was no evidence that his uncle could frustrate State protection. There was no evidence that his uncle could have the power in either country to gain impunity.
17. For persecution risk, the adjudicator concluded that any harm done would not be done for any Convention reasons.
18. There was no evidence that his uncle had the resources to track him down. The applicant could stay safely at a hotel in Osisioma for 4 months. His mother was not disturbed by anyone in Osisioma after he left Nigeria. He was safe at Cotonou while waiting for a visa to China and financial support. All these indicated that his uncle was not able to trace him in everywhere in Benin or Nigeria. Given his background and age, it was not unduly harsh for him to relocate in either country. Lagos and Cotonou would be viable.
Judicial Review
19. The applicant filed the leave application for judicial review on 31/7/2018. In his affidavit, the applicant asserted that his life was in high danger.
20. In a leave application, this court would consider whether there is any error of law or procedure. Whether the decision of the TCAB was reasonable. This court would not interfere with the finding of facts unless it is obviously wrong.
21. The adjudicator had analyzed the evidence in detail. He correctly pointed out the contradictions in the applicant’s evidence. He was justified in rejecting the factual basis of the applicant’s claim.
22. In my view, his conclusion is reasonable. There is no error of law and procedure in the TCAB decision.
Conclusion
23. I refuse leave for judicial review. This case is not reasonably arguable. There is no reasonable prospect of success.
Dated the 2nd day of December 2021.
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(Mike Mak)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 2 December 2021
Karimou Issa Bachirou
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on
2 December 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 4633/16/9/12/BE3
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2263/15 &
RBCZ9002636/17
(formerly RBCZ 12768/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] He departed Benin and Nigeria on 5/6/2014. He went to China on 6/6/2014 before coming to Hong Kong on 17/6/2014.
[2] Public Complaints Bureau, complaint boxes, telephone hotlines and human rights desks.
[3] Public Complaints Commission, National Human Rights Commission and Economic and Financial Crimes Commission etc.
[4] Decision of the TCAB dated 28/6/2018, §§56—67.
[5] S. 37ZD, Immigration Ordinance.
[6] It should be Djougou instead of Cotonou in para.60 of the TCAB Decision dated 28/6/2018. This is obvious when para. 38 is read together.
[7] The two cities were about 500 km apart.
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