OKEZIE MUNACHISO ALIAS OKUJETO PHILIP v. TORTURE CLAIMS APPEAL BOARD

HCAL 2005/2018

[2021] HKCFI 2467

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2005 of 2018

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 52-year-old national of Nigeria who arrived in Hong Kong on 25 March 2006 on a Ghanaian passport with a false identity with permission to remain as a visitor up to 9 April 2006 when he did not depart and instead overstayed and was arrested by police on 13 January 2015. After he was referred to the Immigration Department for investigation, he admitted his true identity and raised a non-refoulement claim on the basis that if he returned to Nigeria he would be harmed or killed by the Nigerian government for his association with the Movement for the Actualization of the Sovereign State of Biafra (“MASSOB”) which was regarded as an illegal secessionist group by the government and/or being persecuted for being a Christian by his village high priests and/or various militant or terrorist groups including the Fulani herdsmen, Boko Haram and the Arewa Youths Forum (“AYF”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born as an ethnic Igbo in Akoli, Abia State, Nigeria where he was raised in a community that worships ancient deities and was chosen in relation to the deity Ezinala to be the next high priest in-line by his community upon the passing of the current high priest.

3.  After leaving school he worked as a secondary school teacher in Abia State, and later in 2000 he went to Lagos State to work as a chemist in a company.

4.  In 2001 the Applicant became a member of MASSOB which supported the Igbo nationalism and the recreation of an independent state of Biafra, and participated in the group’s protests and rallies in the South East of Nigeria between 2001 and 2006, during which he and his fellow members had been repeatedly attacked and even shot at by the police resulting in many deaths and injuries amongst MASSOB members and supporters including the Applicant who had suffered serious injuries in his body and limbs.

5.  On one occasion in late 2005, after participating in a protest in Aba State, the Applicant and some of his fellow members were arrested, detained and tortured by the police that he suffered injuries to his right ankle, left forearm and his back but for which he was never given any medical treatment during his detention for months without charge until early 2006 when he managed to make his escape after other MASSOB supporters had paid bribes to the guards.

6.  After his escape from police custody, the Applicant went into hiding, and as he has become a Christian since he left his home community and has refused to be the next chief priest of the supreme deity and for which the high priest of Ezinala has demanded that he be caught and to be killed as a sacrifice to prevent evil events from happening to the community due to his refusal to be the next high priest, the Applicant felt it was no longer safe to remain in Nigeria, and so he departed in early 2006 for neighbouring Togolese Republic, and from there he later travelled to Hong Kong on 25 March 2006 on his fake Ghanaian passport where he overstayed until his subsequent arrest by police years later in 2015 when he then raised his raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 15 June 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

7.  By a Notice of Decision dated 12 September 2017 the Director of Immigration (“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 his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and doubted the credibility of his claimed fear of torture or political persecution of being a member of MASSOB or of religious persecution in his home community due to serious inconsistencies and discrepancies in the information submitted by him without reliable evidence in support of his bare assertions which had been further undermined by his use of a false Ghanaian passport to enter Hong Kong in March 2006 and his failure to raise his non-refouleemnt claim at the earliest opportunity until more than 8 years later and only after his arrest by the police in January 2015 that it was not accepted that he will have any real risk of any harm from the Nigerian authorities or the Ezinala priests, or any other claimed risks against him as a Christian by groups such as Fulani herdsmen, Boko Harem or AYF upon his return to Nigeria in the absence of any real threats or ill-treatments inflicted by them on the Applicant in the past, that in any event that in the absence of any 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 186 million people spread across a vast territory of more than 910,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Nigeria away from his home district such as Lagos State where it would be difficult if not impossible for his perceived enemies to locate him.

9.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 8 May 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 1 August 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board found such vagueness and inconsistencies in the Applicant’s evidence regarding his claimed involvement in MASSOB that it doubted the credibility of his claim of fear of harm from the Nigerian authorities, nor did it accept that he is of such importance in his home community that there would still be any adverse interest in him after all these years over his refusal to be the next high priest, that the credibility of his claims have been further undermined by his use of a faked passport to enter Hong Kong and his failure to raise his claims until his arrest many years later, while there is simply no evidence of any direct threats or ill-treatment inflicted on him by any of those other named enemies or parties due to his Christianity, and that in any event with state/police protection available to him upon his return to Nigeria as well as reasonable internal relocation for him to move safely away from his home district to other area dominated by his ethnic Igbo and/or Christians without any risk of encountering those militant or terrorist groups such as Boko Harem or Falani Herdsman that his claim for non-refoulement protection failed on all applicable grounds.       

11.  On 21 September 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affidavit of the same date he just repeated his claim of fear of harm from those various parties as before without putting forth any proper ground for his intended challenge, nor did he request any hearing for his application. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

12.  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.

13.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 58 – 94 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, the credibility of which has been further undermined by his failure to raise his claim at reasonable opportunity as stipulated under Section 37ZD of the Immigration Ordinance, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.  

14.  The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nigeria, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

15.  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 Applicant’s claim.

16.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

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