MC AND OTHERS v. TORTURE CLAIMS APPEAL BOARD

HCAL 1784/2020

[2026] HKCFI 3612

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1784 OF 2020

  Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

(1)   Extension of time for the application for leave to apply for Judicial Review be granted;

(2)   Leave for the Applicants to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 4 June 2020 be granted;

(3)   The Applicants do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule 5 of the RHC (Cap 4A);

(4)   The Applicants do serve a copy of the Originating Summons together with all the relevant documents on the Director of Immigration as respondent;

(5)   Costs be in the cause; and

(6)   The Applicants’ own costs be taxed in accordance with the Legal Aid Regulations.

Observations for the Applicants:

1.  The 1^st and 2^nd Applicants are a married couple of Nigerian nationality who arrived in Hong Kong respectively in 2004 and 2009 as visitors but both overstayed, and subsequently jointly raised a torture claim to the Immigration Department on the basis that if they returned to Nigeria they would be harmed or killed by the Nigerian authorities due to the 1^st Applicant’s involvement in the organization of Movement for the Actualization of the Sovereign State of Biafra (“MASSOB”) which supports the recreation of an independent state of Biafra in the southern regions of Nigeria for the nationalism of the Igbo ethnic group but is regarded by the Nigerian government as secessionist and illegal, and after their torture claim was rejected, they then sought non‑refoulement protection on the same basis, and upon the 2^nd Applicant subsequently giving birth to their 4 children in Hong Kong, they also raised a non-refoulement claim on their behalf as 3^rd, 4^th, 5^th, and 6^th Applicants respectively based on their own claims. They have all been released on recognizance pending the determination of their claims.

Relevant Factual Back Grounds

2.  The 1^st Applicant and 2^nd Applicant were born respectively in 1969 and 1978 in Enugu State of Nigeria, and both are of the Igbo tribe and are Christian. After leaving school the 1^st Applicant worked as an electrician and subsequently ran his own car-parts trading business, while the 2^nd Applicant was attending the university when they got married in 2002.

3.  In 1967, shortly before the 1^st Applicant was born, the eastern region of Nigeria was declared an independent state of Biafra consisted mostly of the Igbo tribe after a coup led by General Chukwuemeka Odumegwu Ojukwu who then became its president, but when the Nigerian military tried to regain the territory by force, a civil war erupted for the next 3 years resulting in heavy civilian casualties, and eventually in 1970 the state of Biafra surrendered to the Nigerian government after its President Ojukwu fled the country into exile.

4.  However, after the civil war Igbo nationalism became a strong political and social force, and has grown more militant since the 1990s calling again for the independence of the Biafra people and the establishment of their state, and led to the formation of MASSOB in 1999 and frequently clashed with the Nigerian authorities which then outlawed it and arrested and detained thousands of its members.

5.  One of those arrested was the 1^st Applicant’s father, an Igbo chief who was subsequently executed by the Nigerian government, and which proved to be the catalyst for the 1^st Applicant to join MASSOB as a member in 2002 in Ogun State where he was running his car parts business, and subsequently became a coordinator of MASSOB in Abeokuta, the capital city of Ogun State which was located in the Southwest region of Nigeria and also the home of then President Olusegun Obasanjo, and hence MASSOB activities there were heavily circumscribed and monitored that the 1^st Applicant and his fellow MASSOB members had to conduct their meetings and activities in neighboring Lagos State.

6.  One day in October 2003 the 1^st Applicant was arrested by the Nigerian authorities for his involvement in MASSOB and was detained for several months for interrogations at the Ibara Police Station without charge, during which he was physically, sexually and mentally tortured and abused by various means including exposure to teargas in an enclosed environment, waterboarding, penile insertion, and sleep and sensory deprivations, as well as a gun shot in his hip on one occasion by an interrogating officer.

7.  Eventually with the help of a lawyer hired by his friends, the 1^st Applicant was released on bail, and was hospitalized in the Federal Medical Centre in Akeokuta for treatments for several months before he was discharged and returned to his home.

8.  Shortly after the 1^st Applicant had returned to operate his shop, the police came one day and told him to report to the police station the next day, but due to his fear of being detained and tortured again, the 1^st Applicant insisted in consulting his lawyer first, to which the police agreed and left. 

9.  However, when he was later informed by a friend of having read on a newspaper of the issue of a warrant for his arrest by the police, the 1^st Applicant became fearful of being arrested and tortured again by the police and fled from his home to hide in his friend’s place, and subsequently with a passport and air ticket obtained for him by his friend, the 1^st Applicant was able to depart Nigeria on 2 August 2004 for Hong Kong where he subsequently overstayed and lodged a claim to the UNHCR for refugee status.

Non-refoulement Claims

10.  After the 1^st Applicant left Nigeria, the police came to his home in Ogun State looking for his wife the 2^nd Applicant who was however then attending university in Enugu State, whereupon they detained her sister for information as to the whereabouts of the 1^st Applicant, and so the 2^nd Applicant also went into hiding, and after receiving threatening messages in her phone from unknown people asking for 1^st Applicant’s whereabouts, and was later being followed by plainclothes police in November 2008, the 2^nd Applicant also became fearful for her own safety, and so on 17 January 2009 she departed Nigeria for Hong Kong to join the 1^st Applicant, and on 5 February 2009 they surrendered to the Immigration Department and jointly raised their torture claim, and after it was rejected they then sought non-refoulement protection, for which they completed a Supplementary Claim Form (“SCF”) and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

11.  Whilst released on recognizance pending the determination of their claims, the 1^st Applicant in 2008 attended a psychological evaluation by Dr Susan D. Mistler of Central Health Medical Practice in Hong Kong and was diagnosed to be suffering from Chronic Post-Traumatic Stress and Major Depressive Disorder as a result of the torture suffered in the past in Nigeria, and that his mental health would further deteriorate if returned to Nigeria.

12.  In 2018 for the purpose of the screening of his non-refoulement claim, the 1^st Applicant was arranged by the Immigration Department to attend another psychiatric assessment at the Castle Peak Hospital, and was reported to be still suffering from recurrent depressive disorder with the presence of features of post-traumatic stress disorder, but his mental condition has improved as a result of his psychiatric and psychological treatments received over the years in Hong Kong.         

13.  Meanwhile upon the 2^nd Applicant giving birth to their 4 children in Hong Kong: the 3^rd Applicant a son in 2010, the 4^th Applicant a daughter in 2012, the 5^th Applicant a son in 2014, and the 6^th Applicant a daughter in 2017, the 1^st Applicant also raised a non‑refoulement claim for each of them on the same basis of his own claim and with the same legal representation from DLS.

14.  In 2013 the 1^st Applicant joined another organization known as Indigenous People of Biafra (“IPOB”) in Hong Kong as a member which similarly advocates for the independence of the State of Biafra from Nigeria by attending various meetings and activities in Hong Kong, and had submitted to the Immigration Department various documentary evidence in support of his claimed membership and involvement in IPOB in Hong Kong.

Director’s Decision                 

15.  By a Notice of Decision dated 11 October 2018 the Director of Immigration (“Director”) rejected the claims of all the Applicants on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”) (except for 1^st, 2^nd and 3^rd Applicants due to the earlier rejection of their torture claims), risk of their 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”).

16.  In his decision the Director took into account of all the relevant circumstances of the claims of the Applicants and assessed the level of risk of harm from the Nigerian authorities upon their return to Nigeria as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any of the Applicants being targeted or ill-treated by the Nigerian government or authorities by reason of their Igbo tribe or ethnicity as it is doubtful of the credibility of the 1^st Applicant’s assertions of being a member of MASSOB or of his claimed torture by the Nigerian authorities or that he was a wanted person by the Nigerian police prior to his departure of the country that it is not accepted that he or his family would face any real risk of harm under any of the applicable grounds from the Nigerian authorities upon their return to Nigeria due to his claimed involvements in MASSOB or his alleged activities in IPOB in Hong Kong as neither of which was found to be credible or reliable.

Appeal to Board

17.  On 24 October 2018 the Applicants lodged their joint appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended 2 oral hearings on 30 July 2019 and 26 August 2019 with their lawyer from DLS before the Board during which both the 1^st and 2^nd Applicant gave evidence and answered questions raised of their claims by the Adjudicator for the Board and with submission made by their lawyer on behalf of all the Applicants.  On 4 June 2020 their appeal was dismissed by the Board which also confirmed the Director’s decision.

18.  In its decision the Board found the 1^st Applicant’s assertions of ill-treatments and torture by the Nigerian authorities all just bare statements and his explanation that it was emotionally painful for him to recall them was not acceptable that it was difficult for the Board to accept that he did suffer those ill-treatments as alleged, that there were also material inconsistencies discrepancies and implausibility in his account of the alleged issue of a warrant for his arrest by the police that his such claim cannot be considered as truthful that there was simply no ground or reason for him to flee Nigeria as claimed, and the fact that he could have left the country freely for Hong Kong in August 2004 shows that the Nigerian authorities has no adverse interest in him, while his submitted evidence of his membership or involvement in IPOB in Hong Kong is scanty that it is not accepted that the Nigerian authority is aware of his such activities that it is unlikely that his feared ill-treatment by the Nigerian authorities upon his return to Nigeria will materialize, that the same situation will also apply to the 2^nd Applicant given the fact that she encountered no problem from the Nigerian authorities when she departed the country 2008 for Hong Kong which shows that she was not wanted by the Nigerian government either that it is not accepted that she will face any risk from the Nigerian authorities upon her return to Nigeria either, that in any event that even on her own case that the adverse interest of the Nigerian authorities in her was for information as to the whereabouts of the 1^st Applicant that upon his return to Nigeria that he would be met by the Nigerian officials that the Nigerian police will no longer have any need for the 2^nd Applicant that it is unlikely that her feared ill-treatments will materialize either, while their children, 3^rd to 6^th Applicants who were all born in Hong Kong and hence have never faced any threats from the Nigerian authorities, and as their claims all depended on the outcome of the claims of the 1^st and 2^nd Applicants that it followed that it is also unlikely that they will face any risk of harm from the Nigerian authorities upon their return to Nigeria that the Board concluded that the claims of all the Applicants for non-refoulement protection failed on all applicable grounds.

Leave Application for Judicial Review    

19.  On 7 September 2020 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, and subsequently upon being granted Legal Aid and with legal representation, they put forward the following amended grounds for their intended challenge:

(1)   Error of law/irrationality in its assessment of the credibility of the 1^st Applicant and his claim;

(2)   Irrationality/failure to adequately assess the relevant and up-to-date COI or at all and to give adequate reasons for its decision in rejecting the Applicants’ claims;

(3)   Error of law/irrationality in failing to assess the Applicants’ claims on Persecution Risk;

(4)   Failure to consider child-specific risks and/or to conduct separate and independent assessments of the claims of the 3^rd to 6^th Applicants all being minors at the time of their appeal before the Board.     

20.  By then the Applicants appeared to be somewhat out of time with their application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

21.  As the last day of the three-month period for them to file their Form 86 fell on 4 September 2020, the Applicants were therefore about 3 days late with their application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

22.  In the Applicants’ case, a delay of 3 days cannot on any views be regarded as significant, and given the facts that their application for Legal Aid was initially unsuccessful which led to a subsequent appeal, and that in between there was the month of August for the court’s vacation, and that shortly before the filing of their Form 86 the Applicants had sought what was considered as necessary an anonymity order from the court and which accounted for the short delay, I am prepared to exercise my discretion to extend time to their application.

Relevant Applicable Principles for Assessment of Claims

23.  Given the Board’s rejection of the Applicants’ claims was essentially premised on its adverse finding on the credibility of the 1^st Applicant’s case, it would be relevant to first set out the established applicable principles on credibility assessment of non‑refoulement claims.

24.  Firstly, it is well established principle that the burden of proof of the claim lies on an applicant, while the duty to ascertain and evaluate all the relevant facts and evidence is shared between him and the decision-maker, that given the special nature of this type of cases and the circumstances that the applicant is said to have fled his country that the requirement of evidence should not be too strictly applied, and that if the applicant’s account appears credible, the decision-maker should consider given his claim the benefit of the doubt, as provided by the UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection, reissued in February 2019, where it deals with the principles and methods in establishing the facts of the individual case as follows:

“196. It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.

197. The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself. Allowance for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant.

198. A person who, because of his experience, was in fear of the authorities in his own country may still feel apprehensive vis-à-vis any authority. He may therefore be afraid to speak freely and give a full and accurate account of his case.

199. While an initial interview should normally suffice to bring an applicant’s story to light, it may be necessary for the examiner to clarify any apparent inconsistencies and to resolve any contradictions in a further interview, and to find an explanation for any misrepresentation or concealment of material facts. Untrue statements by themselves are not a reason for refusal of refugee status and it is the examiner’s responsibility to evaluate such statements in the light of all the circumstances of the case.

…

201. Very frequently the fact-finding process will not be complete until a wide range of circumstances has been ascertained. Taking isolated incidents out of context may be misleading. The cumulative effect of the applicant’s experience must be taken into account. Where no single incident stands out above the others, sometimes a small incident may be “the last straw”; and although no single incident may be sufficient, all the incidents related by the applicant taken together, could make his fear ‘well-founded’ …

202. Since the examiner’s conclusion on the facts of the case and his personal impression of the applicant will lead to a decision that affects human lives, he must apply the criteria in a spirit of justice and understanding and his judgment should not, of course, be influenced by the personal consideration that the applicant may be an ‘undeserving case’.”  

25.  These principles were affirmed and adopted by our Court of Final Appeal in the case of Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at [21] of the judgment, and in which Li CJ went on to state that all relevant matters of the applicant’s case should be considered, and with high standards of fairness to be complied with when considering individual cases as follows:

“51. In considering the potential deportee’s torture claim, the necessary high standards of fairness should be approached as follows: (1) The potential deportee, who has the burden of establishing that he would be in danger of being subjected to torture if deported to the country concerned, should be given every reasonable opportunity to establish his claim. (2) The claim must be properly assessed by the Secretary. The question as to what weight the Secretary may properly place on UNHCR’s decision in relation to the refugee status will be addressed later. (3) Where the claim is rejected, reasons should be given by the Secretary. The reasons need not be elaborate but must be sufficient to enable the potential deportee to consider the possibilities of administrative review and judicial review.

52. In assessing the potential deportee’s torture claim in accordance with the policy, all relevant matters should be considered including the following:

(1) The conditions in the country concerned: Is there evidence of a consistent pattern of gross, flagrant or mass violations of human rights in that country? Has the situation changed?

(2) Has the potential deportee been tortured in the past and how recently?

(3) Is there medical or other independent evidence to support the claim of past torture?

(4) Has the potential deportee engaged in political or other activity within or outside the country concerned which would make him vulnerable to the risk of being subjected to torture on return?

(5) Is the claim credible? Are there any material inconsistencies? Is there any evidence as to the credibility of the potential deportee?

…

53. It is for the Secretary to comply with the high standards of fairness when considering individual cases. The following observations may, however, be of assistance. First, the difficulties of proof faced by persons in this situation should be appreciated. The person concerned may have fled from the country concerned with few belongings and documents and his level of education may be relatively low. The situation is analogous to that of persons seeking refugee status under the refugee Convention. And the guidance provided by UNHCR in its Handbook for the determination of refugee status provides a useful reference for dealing with claims relating to torture.

54. Secondly, it would not be appropriate for the Secretary to adopt an attitude of sitting back and putting the person concerned to strict proof of his claim. It may be appropriate for the Secretary to draw attention to matters that obviously require clarification or elaboration so that they can be addressed by the person concerned …

55. Thirdly, an understanding of country conditions at the time of the alleged torture in the past as well as at the present time is usually relevant to the assessment of the claim. This is recognized by the policy. UNHCR may be able to supply relevant information. And published materials are available from various sources including well-respected non-governmental organizations. The Secretary should obtain any such information and materials and take them into account.”  

26.  The importance that all relevant matters should be taken into account and to be looked at in the round in the evaluation of the claim was emphasized by the UK Court of Appeal in Karanakaran v Secretary of State for the Home Department [2000] EWCA Civ 11, 25 January 2000 as Sedley LJ stated in conclusion:

“18. … The question whether an applicant for asylum is within the protection of 1951 Convention is not a head-to-head litigation issue. Testing a claim ordinarily involves no choice between two conflicting accounts but an evaluation of the intrinsic and extrinsic credibility, and ultimately the significance, of the applicant’s case. It is conducted initially by a departmental officer and then, if challenged, by one or more tribunals which, though empowered by statute and bound to observe the principles of justice, are not courts of law. Their role is best regarded as an extension of the initial decision-making process: see Simon Brown LJ in Ravichandran [1996] Imm AR 97, 112. Such decision-makers, on classic principles of public law, are required to take everything material into account. Their sources of information will frequently go well beyond the testimony of the applicant and include in-country reports, expert testimony and – sometimes – specialized knowledge of their own (which must of course be disclosed). No probabilistic cut-off operates here: everything capable of having a bearing has to be given the weight, great or little, due to it. What the decision-makers ultimately make of the material is a matter for their own conscientious judgment, so long as the procedure by which they approach and entertain it is lawful and fair and provided their decision logically addresses the Convention issues. Finally, and importantly, the Convention issues from first to last are evaluative, not factual. The facts, so far as they can be established, are signposts on the road to a conclusion on the issues; they are not themselves conclusions. How far this process truly differs from civil or criminal litigation need not detain us now.

19. It would be pointless, for the rest, to traverse ground so well covered by Brooke LJ. It is, however, worth observing (or at least hoping) that the approach which we consider to be the correct one bodes out what Simon Brown LJ said in Ravichandran [1996] Imm AR 97, 109:

‘In my judgment the issue whether a person or group of people have a ‘well-founded fear … of being persecuted for [Convention] reasons’ … raises a single composite question. It is, as it seems to me, unhelpful and potentially misleading to try to reach separate conclusions as to whether certain conduct amounts to persecution, and as to what reasons underlie it. Rather the question whether someone is at risk of persecution for a Convention reason should be looked at in the round and all the relevant circumstances brought into account. I know of no authority inconsistent with such an approach and, to my mind, it clearly accords both with paragraph 51 of the UNHCR Handbook and with the spirit of the Convention.’

While, for reasons considered earlier, it may well be necessary to approach the Convention questions themselves in discrete order, how they are approached and evaluated should henceforward be regarded not as an assault course on which hurdles of varying heights are encountered by the asylum seeker with the decision‑maker acting as umpire, nor as a forum in which the improbable is magically endowed with the status of certainty, but as a unitary process of evaluation of evidential material of many kinds and qualities against the Convention’s criteria of eligibility for asylum.”

27.  In UNHCR’s Beyond Proof – Credibility Assessment in EU Asylum Systems, May 2013, a comprehensive report designed to harmonize and improve how European Union members states evaluate the credibility of asylum seekers, it agreed with what Sedley LJ had stated above and affirmed that credibility assessment should be based on the entire relevant evidence of the claim and to be looked at in the round:

“2.7. Credibility assessment based on entire evidence

The credibility assessment must be based on the entirety of the available relevant evidence as submitted by the applicant and gathered by the determining authority by its own means.

‘Such decision-makers, on classic principles of public law, are required to take everything material into account. Their sources of information will frequently go well beyond the testimony of the applicant and include in‑country reports, expert testimony and – sometimes – specialized knowledge of their own (which must of course be disclosed). No probabilistic cut-off operates here: everything capable of having a bearing has to be given the weight, great or little, due to it.’

Therefore, in determining whether to accept or reject a material fact the applicant presents, the decision-maker must take into account all relevant evidence that confirms, supports, refutes, or otherwise bears on the asserted material fact. Decision-makers should be careful not to reach conclusions on the credibility of each material fact in isolation. As UNHCR has stated: ‘taking isolated incidents out of context may be misleading. The cumulative effect of the applicant’s experience must be taken into account.’

Therefore, in determining whether to accept or reject a material fact the applicant presents, the decision-maker must take into account all relevant evidence that confirms, supports, refutes, or otherwise bears on the asserted material fact. Decision-makers should be careful not to reach conclusions on the credibility of each material fact in isolation. As UNHCR has stated: ‘taking isolated incidents out of contest may be misleading. The cumulative effect of the applicant’s experience must be taken into account.’

The European Court of Human Rights has held that ‘[i]n determining whether it has been shown that the applicant runs a real risk of suffering treatment proscribed by Article 3, the Court will assess the issue in the light of all the material placed before it, or, if necessary, material obtained proprio motu’ (emphasis added) This is echoed by the Committee against Torture, which exercises the power of free assessment of the facts based on ‘the full set of circumstances’ in every case. This can be used in an analogous way for credibility assessments.

This approach is also expressed in UK case law as assessing all the evidence ‘in the round’:

‘It is the task of fact-finder, whether official or judge, to look at all the evidence in the round, to try and grasp it as a whole and to see how it fits together and whether it is sufficient to discharge the burden of proof. Some aspects of the evidence may themselves contain the seeds of doubt. Some aspects of the evidence may cause doubt to be cast on other parts of the evidence … Some parts of the evidence may shine with the light of credibility. The fact finder must consider all these points together; and … although some matters may go against and some matters count in favour of credibility it is for the fact-finder to decide which are the important, and which are the less important features of the evidence, and to reach his view as a whole on the evidence as a whole.’

28.  The concept of looking at the information ‘in the round’ in fact also includes all relevant documentary and COI, as reflected in the UK national guidance on fact-finding, as stated in UKBA, Asylum Instructions, Considering the Protection (Asylum) Claim and Assessing Credibility, July 2010, p 14; and in UKBA, Asylum Instructions, Considering Asylum Claims and Assessing Credibility, February 2012, p 14, and of which the UNHCR’s Beyond Proof further states in Section 2.7:

“In assessing the credibility of an asserted material facts, the decision-maker should take into account any relevant documentary evidence that asserts, confirms, supports, refutes or otherwise bears on the material facts. On the issue of assessing documentary evidence, UK guidance adds that, ‘in practice, this means that documentation submitted as evidence should not be considered in isolation from other pieces of evidence that go towards establishing the particular material fact to which it is intended to support as well as other elements of the credibility assessment.’

The assessment of the credibility of a presented fact is flawed if, for example, it is carried out solely with reference to an assessment of the applicant’s statements and ignores available reliable documentary evidence that bears on that fact. Similarly, the reliability of the documentary evidence can only be determined in light of all available evidence. As the High Court of Ireland explained:

‘[T]he adverse finding of credibility is effectively based on the Tribunal member’s premise as to the level of knowledge to be expected and the apparent lack of that knowledge, while the documents have the potential to establish that specific events did happen and happened to the applicant. It is this which gives rise to the need for the whole of the evidence to be evaluated and the analysis to be explained.’

Similarly, case law in the UK highlights the need to take into consideration all relevant evidence, including expert evidence, before reaching a conclusion on the credibility of a material fact:

‘The adjudicator’s failing was that she artificially separated the medical evidence from the rest of the evidence and reached conclusions as to credibility without reference to that medical evidence; and then, no doubt inevitably on that premise, found that the medical evidence was of no assistance to her. That was a structural failing, not just an error of appreciation, and demonstrated that the adjudicator’s method of approaching the evidence diverted from the procedure advised in paragraph 22 of HE.’

Likewise, the credibility of asserted material facts should be assessed in light of all the available relevant COI, and not just portions of that information. Relevant COI should be neither ignored nor misapplied.

The credibility assessment would be flawed if it were carried out with reference solely to selected portions of the available evidence. It must be made with reference to the full picture.”                        

29.  It is further noted in Beyond Proof that the challenges of the credibility assessment in the decision-making process are often compounded by the geographical and cultural distance between the country of origin in which the alleged facts happened and the country in which the application for international protection is examined, the amount of time that has elapsed between these facts and the screening of the case, the psychology of the applicant and the interaction between him and the decision-maker are all relevant to the credibility assessment, as it elaborated at p31:

“The psychology of the applicant, the interview and, if different, the decision-maker, as well as the interactions between these persons are all relevant to the credibility assessment. A wide-range factors influence these psychological processes, including age, gender, sexual orientation and/or gender identity, culture, social status, education, state of health, and mind-set at the time of the interaction. The credibility assessment will also reflect assumptions and behaviour, values, attitudes, perceptions of and responses to risk, and about how a truth account should be presented. When providing statements, applicants are required to recall relevant past and present facts to substantiate their application. The reliance by interviewers and decision-makers on the human memory must also be informed by evidence from neurobiology, and expectations of what can be recalled and how this is done, should be realistic.

Interviewers and decision-makers, therefore, in addition to knowledge of the relevant law and of the country of origin, need to be aware of and to understand these factors that impact on the credibility assessment and to be informed by the substantial body of empirical scientific evidence that exists in these fields.”  

30.  Moreover, in assessing the plausibility of an account, it should be based on its apparent likelihood or truthfulness in the context of the general country information and/or the claimant’s own evidence about what happened to him without any subjective assumptions of the decision-maker, as it is stated in the UK Home Office’s Asylum Policy Instruction: Assessing Credibility and Refugee Status, 6 January 2015, at s.5.6.4:

“Caseworkers must not base implausibility findings on their own assumptions, conjecture, or speculative ideas of what ought to have happened, what they might think ‘someone genuinely fleeing for their life’ should have done, what ought to have been possible or not possible, or how “a genuine refugee” would have behaved, or how they think a third party would have acted in the circumstances.”

31.  In Y v Secretary of State for the Home Department [2006] EWCA Civ 1223, 26 July 2006, the UK Court of Appeal held that in regarding an account as incredible the decision-maker must take care not to do so merely because it would not be plausible if it had happened in the UK, as underlying factors may well lead to behaviour and responses on the part of the claimant which run counter to what would be expected, and as to the actions of others, it is not inconceivable, for example, that a guard might allow a detainee to escape, or a sympathizer to provide assistance, even at the risk of punishment, as it will be important to explore the details and context of the escape or release at the interview of the claimant, as Keene LJ identified the dangers of a decision-maker being influenced by his own views on what is or is not plausible in approaching the issue of credibility, and that it is important that the decision-maker should seek to view a claimant’s account of events in the context of the conditions in the country from which the claimant came, as His Lordship observed at [25]:

“There seems to me to be very little dispute between the parties as top the legal principles applicable to the approach which an adjudicator, now known as an immigrant judge, should adopt towards issue of credibility. The fundamental one is that he should be cautious before finding an account to be inherently incredible, because there is a considerable risk that he will be over influenced by his own views on what is or is not plausible, and those views will have inevitably been influenced by his own background in this country and by the customs and ways of our own society. It is therefore important that he should seek to view an appellant’s account of events, as Mr Singh rightly argues, in the context of conditions in the country from which the appellant comes. The dangers were well described in an article by Sir Thomas Bingham, as he then was, in 1985 in a passage quoted by the LAT in Kasolo v SSHD 13190, the passage being taken from an article in Current Legal Problems. Sir Thomas Bingham said this:

‘An English judge may have, or think that he has, a shrewd idea of how a Llyod broker or a Bristol wholesaler or a Norfolk farmer, might react in some situation which is canvassed in the course of a case but he may, and I think should, feel very much uncertain about the reactions of a Nigerian merchant, or an Indian ships’ engineer, or a Yugoslav banker. Or even, to take a more homely example, a Sikh shopkeeper trading in Bradford. No judge worth his salt could possibly assume that men of different nationalities, educations, trades, experiences, creeds and temperaments would act as he might think he would have done or even – which may be quite different – in accordance with his concept of what a reasonable man would have done.’ ”

32.  Such view and approach have been adopted by the Hong Kong courts, and in ST v Betty Kwan [2014] 4 HKC 419 [2014] 4 HKLRD 277, the Court of Appeal identified the dangers of adopting personal assumptions, conjecture or speculations when assessing the credibility of a claim, as Cheung CJHC (as he then was) elaborated on the considerations of particular relevance to screening torture claimants as a matter of fairness at [43]:

“A further example is the situation where the material placed before the adjudicator calls for some further probing, questioning or inquiry as a matter of fairness. This is particularly so if the absence of such further probing, questioning or inquiry would mean the adjudicator’s drawing an inference adverse to the applicant by using common sense or his deciding the issue or even the entire CAT claim by reference only to the burden of proof. In screening a CAT claim, common sense may or may not be a reliable guide, depending, sometimes at least, on the circumstances prevailing in the foreign country or place concerned. What is ‘common’ sense in Hong Kong could be ‘uncommon’ sense in another place, and vice versa. As for deciding an issue or the CAT claim solely on the burden of proof, this should be regarded as a means of last resort given that the screening process is not an adversarial one, but one which is in the nature of a joint endeavour.”

33.  Henceforth, in assessing the credibility of  a claim and making credibility findings thereof, all the evidence, both oral and documentary, must be considered and assessed, and where appropriate within the context of the relevant COI as to the situations of the country or place where the claimant comes from, and not just selected portions of the evidence, and when assessing all of the evidence, it must be assessed together, not parts of it in isolation from the rest of the evidence, and that even if there are inconsistencies or exaggerations, the decision-maker must still go on to assess the evidence which is found to be credible, and to determine the claim as the totality of the evidence warrants and in the round, and that the rejection of some of the evidence, or even all of the claimant’s testimony, on account of lack of credibility does not necessarily lead to the rejection of the claim which must still be assessed on the basis of the evidence that was found to be true, including documentation relevant to the claimant’s situation and evidence regarding persons who are similarly situated: See Section 2.2.1 and 2.2.2 of the Immigration and Refugee Board of Canada’s Assessment of Credibility in Claims for Refugee Protection, 31 January 2004.  

34.  In other words, having carefully assessed the credibility of the material facts with regard to all the relevant evidence obtained through the lens of the credibility indicators as appropriate in the light of the applicant’s individual and contextual circumstances, and duly taking into account the reasonableness of any explanation provided by the applicant with regard to potentially adverse credibility findings, the decision-maker must determine whether to accept a material fact as credible or not, and if there is still some doubt over the credibility of some asserted facts, the decision-maker should consider whether to apply the principle of the benefit of the doubt: see UNHCR’s Beyond Doubt at p50.

35.  Lastly, and no less importantly, high standards of fairness must be observed by the decision-maker in all aspect of the assessment and determination of applications of this nature, as Li CJ elaborated in Prabahar as follows:

“43. The question in this appeal concerns the standard of fairness that must be observed by the Secretary in determining in accordance with the policy the potential deportee’s claim that he would be subjected to torture if returned to the country concerned. One is concerned with procedural fairness and there is of course no universal set of standards which are applicable to all situations. What are the appropriate standards of fairness depends on the examination of all aspects relating to the decision in question: R v Home Secretary, ex p Doody [1994] 1 AC 531 at p.560D-G.

44. Here, the context is the exercise of the power to deport. The determination of the potential deportee’s torture claim by the Secretary in accordance with the policy is plainly one of momentous importance to the individual concerned. To him, life and limbs are in jeopardy and his fundamental human right not to be subjected to torture is involved. Accordingly, high standards of fairness must be demanded in the making of such a determination.”   

Board’s Assessments and Reasons for Decision

36.  In the case of the Applicants in the present case, the Board’s assessments of the credibility of the 1^st Applicant’s claim can be found in [53] – [88] of its decision, starting with its findings of his claimed physical sexual and psychological abuses by the authorities during detention as being just bare statements without details or particulars due to alleged emotionally painful for him to recall such suffering during his detention, as it stated at [58]:

“The items of ill-treatment are just bare statements. No particulars relating to the occurrence, frequency, duration and other related circumstances of each item of ill‑treatment were given in the SCF. In the SCF he stated that ‘it is very painful emotionally for me to recall my suffering during detention.’ This statement shows that it was only very painful emotionally for him to recall his suffering during detention. It is not that he could not recall the occurrence of the ill-treatment incidents which brought about his suffering. It is only natural that a genuine non-refoulement seeker would try his/her utmost to put forward as much as possible in his/her claim form all the particulars of the ill-treatment he/she suffered in the past in order to persuade the decision-maker of his non-refoulement claim to accept that his/her suffering was genuine and real. His alleged ill-treatments and subsequent issue of warrant for his arrest made him flee Nigeria. Therefore this is part of the core of his case. But no such particulars were given in his SCF. At the hearing he only referred to a gunshot to his hip by an interrogating police officer and that he had to undergo an urine test whilst he was in the hospital because of the bullet. It is difficult for me to accept, on the basis of such bare statements and such scanty evidence in respect of his alleged ill-treatments, that he did suffer the alleged ill-treatments.”

37.  The Board proceeded to find various inconsistencies and discrepancies in the 1^st Applicant’s account of how he subsequently found out about the warrant for his arrest issued by the police that led him to flee the country to come to Hong Kong, as it so stated at [59] in the decision:

“His case is that he suffered ill-treatments at the hands of the Nigerian police. He was released from the police station. Because of the injuries sustained during the ill‑treatments, he was hospitalized. After discharge from the hospital, he went home, and afterwards to his shop. Then the police asked him to report to the police station on the next day. But he did not comply with the request. After around one week, he came to know about the warrant for arrest. He worried about his safety. Therefore, his friend (named Alhaji) helped him to obtain a travel document so that he could leave Nigeria. He was staying in Alhaji’s house for Alhaji to obtain the documents and the air tickets for him.”

38.  The Board then asked what it considered to be the crucial question of ‘whether it is true that the police did issue a warrant for arrest against the 1^st Applicant’ at [60], and proceeded to make the following findings of what it considered as inconsistencies and discrepancies in the information/evidence submitted by him:

(a)   that the account given by him in his SCF of being told by his friend of having seen on the newspaper of the issue of the warrant of arrest issued by the police against him but in his subsequent evidence given to the Board that he had read the newspaper himself as inconsistent and unbelievable ([63];

(b)   that his subsequent failure to ask his friend to get him the newspaper so that he could read it himself is unbelievable ([65]);

(c)   that his friend’s failure to get the 1^st Applicant the newspaper for him to read it for himself about issue of the warrant for his arrest by the police is also unbelievable ([66]);

(d)   that the police would publish a warrant for his arrest on the newspaper instead of just going to his home or shop to arrest him is unbelievable ([71]);

(e)   that the police did not arrest him during the first 7 days of his failure to report to the police and then publicized the warrant for his arrest on a newspaper before actually going to his shop to look for him for 6 to 7 times over a period of 3 months is absolutely unbelievable ([73]);

(f)   that his claims of being released from the police detention, the issue of the warrant for his arrest by the police, and the obtaining of his travel documents for his exit of the country all occurred in the year of 2003 instead of 2004 is clearly wrong based on simple calculation ([76] – [78]);

(g)   that there was no logical reason for his passport to be dated as being issued in 2001 when those alleged incidents all occurred in 2003 or 2004 that caused him to want to leave the country and only then obtained his passport ([79]);

(h)   that the authenticity of the 2 invoices produced by him in support of his alleged membership of IPOB in Hong Kong was found to be doubtful due to the discrepancies over the dates of their issues ([81] – [88]);

(i)   that the information and evidence given by him as to the police’s subsequent interrogation of his wife’s sister for his whereabouts and the threats made against his wife the 2^nd Applicant that caused her to subsequently also leave Nigeria to join him in Hong Kong were conflicting and incredible.            

39.  The Board then concluded that such information/evidence given by the 1^st Applicant were conflicting and incredible that it cannot rely on them to reach a decision in his favour and accordingly dismissed his appeal/petition ([95]). 

40.  Similarly the Board found inconsistencies and discrepancies in the information/evidence given by the 2^nd Applicant as to the times and places when and where she stayed after being followed by unknown men and receipt of threatening messages from the Nigerian police that it concluded that it cannot rely on such unreliable information and evidence to reach a decision in her favour and therefore also dismissed the 2^nd Applicant’s appeal/petition ([89] – [95]).

41.  As for the claims of their children, 3^rd to 6^th Applicants, the Board found that as they were all born in Hong Kong and have never received any threats from the Nigerian authorities, and as their claims all relied on the outcome of their parents’ appeal/petitions which failed that theirs must also fail, and accordingly for the given reasons the Board dismissed the appeals/petitions of all the Applicants at [95]:

“In material aspects of his case, the information/evidence given by A1 is conflicting and incredible. The same situation applies to A2’s case. I cannot rely on such unreliable information/evidence to reach decisions in their favour. I therefore dismiss their appeals/petitions. The appeals/petitions of A3 to A6 rely on the outcome of the appeals/petitions of A1 and A2. When the appeals/petitions of A1 and A2 fail, the appeals/petitions of A3 to A6 must also fail. Hence I dismiss the appeals/petitions of all the 6 claimants.”

42.  The Board then proceeded to conclude, even if the information set out in the SCF of the 1^st and 2^nd Applicants were to be accepted as true, that it would still dismiss their claims in the absence of any evidence of any adverse interests of the Nigerian authorities still in either of them and that they were able to leave the country freely without any problem, and hence it is not accepted that they would face any such risk upon their return to Nigeria, as the Board further explained as follows:

“97. The information/evidence given by A1 in material aspects of his case is unbelievable. The risk of harm as alleged by him, is founded on the basis that the information/evidence given by him is credible. But I found that such basis does not exist. The fact that he could have left Nigeria freely for Hong Kong on 2 August 2004 shows that the Nigerian Government has no interest in him, and so it is unlikely that he would face any risk from the Nigerian government, upon his return to Nigeria. As for his IPOB membership in Hong Kong, there is no evidence to show how it is related to any political body in Nigeria. There is scanty evidence relating to its activities in Hong Kong. There is nothing to show that the Nigerian government is aware of A1’s activities in the IPOB in Hong Kong. There is nothing to show that the Nigeria government is locating him because of his IPOB activities in Hong Kong. Hence it is unlikely that his feared ill-treatment will materialize, upon his return to Nigeria. The same situation also applies to A2. In March 2008, she flew out of Nigeria for Hong Kong and returned to Nigeria on 30 April 2008. In December 2008, she left Nigeria for Hong Kong. On all these occasions, she encountered no problem from the Nigerian Immigration. This show that she is not wanted by the Nigerian government. Hence it is unlikely that she will face any risk from eth Nigerian government, upon her return to Nigeria.

98. For A2, she fears serious harm due to, inter alia, primarily A1’s involvement in the activities of MASSOB and that upon her return to Nigeria she will be subjected to abduction, and/or arrest, detention, interrogation and/or arrest, detention, interrogation and serious harm by the Nigerian authorities for the purpose of obtaining information on A1’s whereabouts and his political activities.

99. During A1’s flight for safety, she was summoned to a police station in Enugu where she was interrogated about A1’s whereabouts. But she did not know his whereabouts, and was eventually released without being tortured.

100. In late August 2008 through October 2008, she received telephone calls and text messages from unknown persons demanding to know A1’s whereabouts. The callers said that if she loved herself, she ought to cooperate. They demanded to know where A1 was and threatened that she would face the consequences and that it would be at his own risk if she did not reveal where she had travelled and where A1 was living.

101. In November 2008, two men whom she believed to be police dressed in plain clothes, followed her home from the market. They approached her and threatened that she would suffer consequences if she did not give up the information they sought by December 2018.

102. So the information the police wanted from her is A1’s whereabouts. A1 does not succeed in his non-refoulement claim. He will be returned to Nigeria, and he will be met by the Nigerian officials over there. Thus A1’s whereabouts will no longer be a problem for them, and therefore for her. So the Nigerian police will no longer have the need to interrogate her in order to know A1’s whereabouts and his political activities. Hence it is unlikely that her feared ill-treatments will materialize.

103. A3 to A6 are children, and they were all born in Hong Kong. They have never faced any threats from the Nigerian authorities. Their claims depend on the outcome of the claims of A1 and A2. Since in the cases of A1 and A2, it is unlikely that their feared ill-treatments will materialize, then it is also unlikely that A3 to A6 will face any risk of harm from the Nigerian authorities.”   

43.  Accordingly the Board found that all the Applicants had not made out a case pursuant to any of the applicable grounds under the Unified Screening Mechanism (“USM”), and therefore dismissed their appeals/petitions and confirmed the Director’s decision ([104] – [125]).

44.  It is against these findings of the Board that I shall now proceed to consider the Applicants’ proposed grounds for their intended challenge, starting with the first 2 grounds which are essentially on the Board’s credibility assessment and determination of the 1^st Applicant’s claim, and which can conveniently be considered together.

Grounds (1) & (2): Erroneous credibility assessment and failure to assess COI and/or to give adequate reasons 

45.  Ms Denise Souza of counsel for the Applicants submits that those adverse credibility findings by the Board as noted above were improperly made and erroneous as they were based on the Adjudicator’s unfounded assumptions and speculations unsupported by any assessment of the documentary or medical evidence provided by the Applicants in support of their claims, and that the Adjudicator’s rejection of the material aspects of the 1^st Applicant’s claim as “unbelievable” was also not grounded in the assessment of any relevant COI as stipulated by the above applicable principles.   

46.  Ms Souza submits that the Adjudicator was clearly wrong to characterize the 1^st Applicant’s evidence as to his ill-treatments by the Nigerian police during detention as “bare” claims without particulars or evidence when in fact there were medical evidence by way of psychological and psychiatric reports before the Board which explained the difficulties that the 1^st Applicant had in recounting his ill-treatments in details by reason of his diagnoses of Post-Traumatic Stress Disorder (“PTSD”) and depression resulting possibly from his torture endured under police custody, and that he did try his best to recount to the Board his various experiences relating to being tear gassed, loss of memory, deprivation of sleep in the cell, death threats and daily interrogations by the police as evidenced by the transcripts of his hearing before the Board, but none of which that the Board had made any substantive assessments as to their contents in its determination of the 1^st Applicant’s claim, when it erroneously concluded at [58] as noted above.

47.  Accordingly Ms Souza submits that the Adjudicator failed to assess the claims of the 1^st and 2^nd Applicants as a ‘shared duty’ or ‘joint endeavour’, as evidenced by the hearing transcripts which demonstrate that the Adjudicator on one hand insisted that the 1^st Applicant provided more details in his testimony but at the same time repeatedly denied his explanations and yet repeatedly questioned his failure to specifically recall events (See BD3/42/600-661).

48.  Ms Souza further submits that the Adjudicator erroneously impugned the 1^st Applicant’s credibility on the basis of unfounded assumptions and speculations as to the practice of the Nigerian police such that it is “simply incredible” for them to interrogate the 1^st Applicant so as to coerce a confession if they already knew that he was a MASSOB member by virtue of his membership card ([56]); or that it is “unbelievable” or “nonsensical” for the police to publicize a warrant of arrest against the 1^st Applicant but failed to locate him at his home or his shop for a period of 7 days before he went into hiding and only went to his shop to look for him on 6-7 occasions for a period of 3 months thereafter ([71]-[73]); or that it would be more “simple” for the Nigerian police to locate the 1^st Applicant at his home or his shop rather than to publicize the arrest warrant ([74]); all of which show that the Adjudicator wrongly approached the facts “through the prism of his own experiences, assumptions and speculations” without conducting any objective or fair assessment about the plausibility of the 1^st Applicant’s claim or with proper assessment of the documentary evidence, or for that matter to conduct any assessment of relevant COI at all in the decision despite being specifically referred to and brought to the Adjudicator’s attention in the Applicants’ skeleton submissions but never referred to at all in the Board’s decision that Ms Souza submits clearly amount to an error of law.

49.  Of those COI relied on by the 1^st Applicant for his claim and available in the hearing bundle before the Board or were brought to its attention in his skeleton submissions but which Ms Souza argues that the Adjudicator had failed to refer to or consider at all but were relevant to the credibility assessment of the 1^st Applicant’s claim in the context of the situations then and now in Nigeria include the follows (BD3/37/475‑561):

(a)   Information on MASSOB and the Nigerian authorities’ treatments of their members;

(b)   Prevalence of and lack of protection against extra-judicial killings, torture and CIDTP in Nigeria;

(c)   Information on IPOB and treatments of its members by the police including using live ammunitions to disperse protesting members and supporters of the IPOB movement and using torture to extract confessions;

(d)   Detention and prison conditions in Nigeria where there is a high rate of deaths in custody, mainly caused by disease, and reports of assault and torture of detainees by detention and prison officials;

(e)   IPOB despite being a non-violent organization was classified by the Nigerian government as an extremist group;

(f)   IPOB members are constantly targeted and killed by the Nigerian Secret Police and continued to be tortured and punished by the State Security Service;

(g)   IPOB and MASSOB members face risk of death penalty or execution and have been arbitrarily detained when they exercised their rights to assembly; and

(h)   Prison conditions in Nigeria are generally extremely poor to the extent that they may constitute torture.   

50.  Ms Souza therefore submits overall that the Adjudicator failed to consider the inherent plausibility of the 1^st Applicant’s account, his submitted medical and documentary evidence, as well as his unchallenged personal and family background of being of the Igbo tribe and the arrest and execution of his father by the Nigerian government for his involvement in MASSOB, all of which that Adjudicator should have taken into account in the determination of the 1^st Applicant’s credibility in the round, and to afford him the requisite benefit of the doubt when assessing his claim.

51.  Having scrutinized the findings and reasons in the Board’s decision for rejecting the credibility of the 1^st Applicant’s claim, and on the basis of the established principles to be applied by decision-makers on the credibility assessment of non-refoulement claims as against such findings by the Adjudicator of the 1^st Applicant’s account as noted above, I agree that Grounds (1) and (2) of the Applicants are reasonably arguable for their intended challenge of the Board’s decision.

Ground (3): Failure to assess the Applicants’ claims on Persecution Risk

52.  While the Board’s finding on the Applicants’ claims under Persecution Risk is set out in [120] – [124] of the decision, it is essentially contained in [122] as follows:

“The Applicants’ problems with the Nigerian authorities have nothing to do with race, religion, nationality, membership of a particular social group or political opinion. Hence their feared ill-treatment does not fall within the definition of ‘persecution’, and their cases do not warrant non-refoulement protection in Hong Kong.”

53.  Ms Souza submits that this clearly shows the failure of the Adjudicator to properly consider whether the Applicants had, by reason of the 1^st Applicant’s involvement with secessionist/separatist groups of MASSOB and IPOB, any well-founded fear of persecution by the Nigerian authorities on the basis of such political opinion and/or membership of those groups upon their return to Nigeria, and instead just broadly dismissed their claims under Persecution Risk without explaining why their claims did not engage consideration under the Convention grounds of imputed opinion and/or membership of a particular social group, as notwithstanding the Adjudicator’s adverse credibility findings against the 1^st Applicant’s account of his past experience and trauma in the hands of the Nigerian police, and the dismissal of some aspects of his factual claims, the fact is that the Adjudicator apparently did not doubt his membership of the Igbo tribe, or his father’s past involvement in the civil war and his subsequent arrest and execution by the Nigerian authorities, as well as the 1^st Applicant’s membership in MASSOB/IPOB and/or his political opinion advocating for the independence of the Biafra State, and hence the Adjudicator was obliged to assess whether there is a real risk of persecution by the Nigerian authorities due to the 1^st Applicant’s such political involvements and/or political opinion on an individual and/or cumulative basis, but which the Adjudicator wholly failed to do.

54.  Ms Souza further submits that even if the Adjudicator did not find the 1^st and/or 2^nd Applicants had suffered any ill-treatments back in Nigeria as alleged, that the 1^st Applicant’s continuous and active participation in the IPOB activities after his arrival in Hong Kong as clearly supported by documentary evidence, including receipts issued by the IPOB Hong Kong Branch and photographs of the 1^st Applicant taking part in IPOB activities in Hong Kong would give rise to a sur place claim that ought to have been given adequate consideration by the Adjudicator.

55.  Ms Souza therefore submits that the Board’s conclusion that the Applicants’ non‑refoulement claims “have nothing to do with” any of the Refugee Convention grounds is plainly wrong, or at least a failure to properly assess the Applicants’ claims on the basis of the Convention grounds of political opinion and/or membership of a particular social group.       

56.  Given the Board’s findings on the Applicants’ claims under Persecution Risk as noted above without apparently making any such proper or adequate assessment of the 1^st Applicant’s political involvements in MASSOB or IPOB whether in Nigeria or Hong Kong, I agree that Ground (3) is similarly reasonably arguable for the Applicants’ intended challenge of the Board’s decision.

Ground (4) Failure to consider child-specific risks and/or conduct separate assessments of the claims of 3^rd to 6^th Applicants

57.  The Board’s assessment of the claims of 3^rd to 6^th Applicants as to risk of harm is essentially contained in one single paragraph at [103] of the decision:

“A3 to A6 are children, and they were all born in Hong Kong. They have never faced any threats from the Nigerian authorities. Their claims depend on the outcome of the claims of A1 and A2. Since in the cases of A1 and A2, it is unlikely that their feared ill-treatments will materialize, then it is also unlikely that A3 to A6 will face any risk of harm from the Nigerian authorities.”

58.  Ms Souza submits that it is apparent from the above that the Adjudicator had failed to separately consider the children’s claims and just dismissed them simply because their parents’ claims have been dismissed, which is contrary to the clear guidance laid down by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971 and Re Jasvir Singh [2021] HKCA 53 in that non-refoulement claims by children are separate claims from similar claims advanced by their parents, and that the decision-maker should consider each claim by reference to the personal circumstances of each child claimant, that even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately, hence it does not necessarily follow from the dismissal of the claim by a parent that the children’s claims could be dismissed without further consideration of their personal circumstances, which Ms Souza argues was exactly what the Adjudicator did in the present case of 3^rd to 6^th Applicants, and that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child ([46] in Fabio Arlyn Timogan and [30] in Jasvir Singh).   

59.  Ms Souza submits that in broadly dismissing the children’s claims, the Adjudicator simply failed to refer to or consider those child-specific risks raised on their behalf with relevant COI at the appeal hearing before the Board, including child abuse, child labour, limited access to public school education, gender-based discrimination and violence, child marriage, and female genital mutilation, all of which according to relevant COI are common in Nigeria but none was considered at all by the Adjudicator in the decision, and is a clear failure to comply with the requirements stipulated in Fabio Arlyn Timogan as noted above.

60.  While the Adjudicator at that time did not have the benefit of those guidance from the Court of Appeal as Fabio Arlyn Timogan was only delivered on 27 November 2020, but given the facts that all the children were born and raised in Hong Kong as observed by the Adjudicator, and have never been to Nigeria, and that those feared risks were indeed specifically raised to the Board at the hearing, the Adjudicator in my view should have referred to and properly considered them in the assessment of their claims notwithstanding the dismissal of their parents’ claims, and to also consider other specific issues personal to those children such as whether or not they might be stateless, or whether they could be refouled to Nigeria, or would be accepted by the Nigerian government as refoulees: See Re Rai Aaska & Anor. [2022] HKCA 62 at [27].

61.  The Fabio guidance apart, under the Immigration Ordinance the Board is given the power to conduct its own enquiry to ensure that all relevant non-derogable rights of the applicants are given meaningful protection, and that it is required to exercise its power to fulfil this positive duty: See Siti Naisah Tasya Stephanie, A Minor by Her Next Friend and Mother Siti Naisah v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Another [2023] HKCA 336.

62.  In the premises, and for these reasons, I am also of the view that Ground (4) as regard 3^rd to 6^th Applicants is reasonably arguable for their intended challenge of the Board’s decision.

Disposition

63.  Accordingly I extend time to the application of the Applicants, and grant leave to them to apply for judicial review of the Board’s decision based on their proposed grounds as stated above, and direct that they shall file and issue the originating summons within 14 days of this decision, and to serve a copy together with all the relevant documents on the Board as respondent and the Director as interested party, and that costs be in the course to be taxed under the Legal Aid Regulations.                         

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