AWOLOR ANTHONY TOYIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL587/2017

[2018] HKCFI 1307

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 587 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 the Applicant being absent in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.  The applicant is a Nigerian national who arrived in Hong Kong on 28 December 2013 and was permitted to remain until the 1 January 2014; his Visa was originally for the purposes of attending the World SME Expo 2013 scheduled for 4 to 7 December 2013 at the Hong Kong Convention and Exhibition Centre.  The applicant did not leave Hong Kong as required and overstayed from 2 January 2014.  He surrendered to the Immigration Department on 25 February 2014.  He lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 10 May 2016 and 11 May 2017.

2.  The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which was rejected on 11 August 2017.  The applicant filed a notice of application for leave to apply for judicial review on 6 September 2017 and he requested an oral hearing.  The hearing was set down for 30 January 2018 and the applicant was absent on that date; his reason given over the telephone on that morning was that he could not afford the transportation fee from Jordan, Kowloon to Admiralty to attend his hearing.  His explanation was unreasonable without further proof or explanation, I reserved my decision and proceeded to consider his application on the papers.

3.  The basis of his claim was that if he were refouled to Nigeria he would be harmed or killed by his brother-in-law Musa because he disapproved of his sister marrying the applicant and converting to Christianity.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and case in detail in their decisions therefore, I will only summarise it here.

4.  The applicant was born in 1971, married in 2001 after his wife converted to Christianity.  They have two children but she passed away in 2013.  Her family were upset she changed her religion from Islam to Christianity, especially her elder brother.  Not long after their marriage, Musa joined the Boko Haram group, a religious group of extreme Muslim fanatics.  For the first 12 years of the applicant’s marriage, his brother-in-law verbally threatened to kill him through his wife.  In that 12-year period, he threatened the applicant face-to-face on two separate occasions.

5.  In May 2013, the applicant’s wife warned him to be careful because her brother and the Boko Haram group were plotting against him but she did not know the details.  A few days later a car bomb exploded right outside the applicant’s shop but because he was inside the shop, he was not injured and ran away immediately.  His shop was destroyed and 18 people were killed with 55 others severely injured.  The bomb was meant to kill the applicant.  The Monday Market Traders Association reported the bomb attack to the police but nobody was arrested after an investigation.  The applicant then travelled back to Lagos where he used to live and the journey took two days.  He remained there in hiding until he left Nigeria in December 2013.

6.  The applicant’s wife died in July 2013 which prompted the applicant to prepare to leave Nigeria.  He believed that his brother-in-law would be even angrier now that his sister had died.  After the applicant’s arrival in Hong Kong, his mother told him not to return to Nigeria because Musa and/or Boko Haram were still looking for him according to the friends of his deceased wife.

7.  The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

(a)   risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c)   risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d)   risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

8.  The adjudicator treated the appeal/petition as a rehearing and conducted an oral hearing; there were two hearing dates.  The adjudicator correctly set out the applicable law and key legal principles for the above grounds and risks in his decision.  He set out the applicant’s case, claims in his non-refoulement claim form and other evidence.  The adjudicator asked him to clarify inconsistencies he found in his evidence.  He found there to be inconsistencies that affected the applicant’s credibility.

9.  The adjudicator set out the inconsistencies which led him to a finding that the applicant was not a genuine and credible claimant.  Originally the applicant had said that Musa hated him so much that he never spoke to him but then said several months after his non-refoulement claim form was filled in that Musa had threatened him face-to-face on two occasions.  The adjudicator was of the view that the applicant was trying to bolster his claim.  He did not believe that Musa hated the applicant so much and threatened to kill him but did nothing to him for 12 years after the applicant and his wife married.  He did not believe that suddenly after 12 years without any good reason, Musa would plant a car bomb specifically to kill the applicant.  The applicant’s explanation that he did not want to hurt the applicant whilst his sister was still alive made no sense when apparently he planted a car bomb to kill the applicant whilst she was still alive.  The newspaper article reporting the bomb does not appear to specify the applicant was the target.

10.  The adjudicator was also of the view that if the applicant was the target then it would have been easy for Musa to locate him at home or in his shop at any time over the years.  It was unnecessary and implausible that he had to plant a bomb in a car that killed and injured so many people yet it would not guarantee to kill the applicant who was, after all the target.

11.  The adjudicator applied the law to the applicable grounds and his findings, concluding that the applicant was unsuccessful in showing he was at risk of torture within the definition of torture under section 37U of the Immigration Ordinance.  The applicant was unable to invoke the protection of BOR 2 or BOR 3 and could not prove a persecution risk for the purpose of a non-refoulement protection claim.  The adjudicator confirmed the decisions of the Director.

Leave to apply for judicial review

12.  I have considered with rigourous examination and anxious scrutiny the papers of this application.  I find the adjudicator’s decision to be without fault.  He analysed the applicant’s claim and evidence carefully.  The applicant’s grounds and complaints are not made out.  I find no substance in the grounds of this application; they are not substantiated.

13.  The applicant’s affirmation is convoluted and hard to decipher, it would appear that there are several grounds.  The adjudicator failed to take into account relevant considerations which included additional submissions, new evidence and an affidavit from his cousin submitted on the second appeal hearing date.  The adjudicator made an error of law in interpreting the BOR 2 risk claim.

14.  The adjudicator certainly acknowledged that there were additional submissions and evidence submitted in the second appeal hearing, see para 19 of his decision.  He did not go into detail but having read the applicant’s additional submissions in enclosure C and his cousin’s affirmation in enclosure E, it is clear that the additional submissions are in effect a repeat of his claim.  His cousin’s affirmation is a repeat of his claim that Musa and the Boko Haram want to harm the applicant.  His cousin says he was attacked by the applicant’s enemies in March 2017 and seriously injured because they thought he was hiding the applicant who had in fact left Nigeria in 2013.

15.  The adjudicator may not have directly addressed the contents of that affirmation but his assessment of the applicant’s evidence and credibility is such that the new evidence submitted clearly did not affect his findings.  In rejecting the applicant’s evidence, the adjudicator found there were no threats from Musa or Boko Haram and no present threats from the same.  This implies a rejection of the applicant’s new evidence.

16.  After considering the applicant’s grounds and the adjudicator’s decision, I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

17.  In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.

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