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CACV 119/2021
[2021] HKCA 1194
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 119 OF 2021
(ON APPEAL FROM HCAL 1237 OF 2018)
________________________
| RE |
NWADOBE CHINATU ELVIS |
Applicant |
________________________
Before: Hon Au JA and Lisa Wong J in Court
Date of Hearing: 10 August 2021
Date of Judgment: 16 August 2021
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JUDGMENT
________________________
Hon Lisa Wong J (giving the Judgment of the Court):
The appeal
1. This is an appeal by the abovenamed applicant, Mr NWADOBE Chinatu Elvis[1], against the order made by Deputy High Court Judge K W Lung (“Judge”) on 12 March 2021 (“Judge’s Decision”) refusing him leave to commence judicial review proceedings. The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 26 January 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“NRF Claim”). Such rejection was embodied in, and communicated to the applicant by, a notice of decision dated 20 April 2017 (“Director’s Decision”).
Basis and allegations in support of NRF Claim
2. The basis of the NRF Claim made by the applicant, a national of Nigeria now aged about 41, is a fear of harm from the Boko Haram (“BH”), a Muslim organisation involved in violent attacks against Christians and their institutions in Nigeria.
3. The circumstances giving rise to such fear have been set out in detail in paragraph 7 of the Director’s Decision and in paragraphs 2 to 6, 35 to 38, 40, 44 and 55 of the Board’s Decision and in gist in [4] and [5] of the Judge’s Decision embodied in the Form CALL-1 dated 12 March 2021, [2021] HKCFI 590 (“Form CALL-1”).
4. Briefly:
(1) Nigeria is a multi-religion country. Although 40% of the population are Christians, it was ruled by Muslim leaders until 2009 when Goodluck Jonathan (“Goodluck”) became the first Christian president. Due to his Christian faith, Goodluck faced opposition from the Muslim community.
(2) The BH, formed with the support and backing of the Muslim leaders, gains power and influence in Nigeria. It uses violent means to try to depose Goodluck and to convert Nigeria into an Islamic state. With frequent bomb attacks on Christian institutions, the situation in Nigeria deteriorated under Goodluck’s presidency.
(3) The applicant is a Christian.
(4) One evening in early 2010, a bomb blasted outside the dormitory of the applicant’s football team in the Kaduna state when they were there for a match. Despite the close proximity of the explosion, the applicant was not injured at all.
(5) Despite not having encountered in person, or been troubled by, any BH militant, believing that Christians would not be protected in Nigeria, the applicant began to feel unsafe in late 2010.
(6) Having made an unsuccessful application for a Hong Kong visa as Nwadobe Chinatu Elvis (his claimed real name) in 2008, the applicant obtained a visitor’s visa for Hong Kong by using the passport of one Ani Emeka Augustine in early December 2010. He lived with a friend in Lagos from December 2010 until he departed by air on 26 February 2011.
(7) The current president of Nigeria, Buhari, is a Muslim and a secret supporter of the BH.
Entry into Hong Kong and lodgment of NRF Claim
5. The applicant arrived in Hong Kong on 27 February 2011, using the passport in the name of Ani Emeka Augustine. He overstayed his visitor’s visa since 13 March 2011. He was arrested by the police on 10 September 2012 for failure to produce proof of his identity.
6. On 13 September 2012, he raised a claim against torture risk[2] under Part VIIC of the Immigration Ordinance (Cap 115) (“Torture Claim”), in support of which he lodged a completed torture claim form dated 28 November 2012. He also attended a screening interview with the Director’s representative(s) on 28 December 2012. The Director rejected the Torture Claim by a notice of decision dated 19 February 2013. His appeal to the Board against such decision was dismissed on 10 April 2013.
7. Meanwhile, the applicant had lodged a claim for protection against cruel, inhuman or degrading treatment or punishment (“CIDTP”) by a letter dated 28 February 2013 from the Duty Lawyer Service (“DLS”). However, he then jumped bail on 2 April 2013. On 5 November 2015, the police arrested him in execution of a warrant for his arrest.
8. As the unified screening mechanism (“USM”) has commenced on 3 March 2014, the applicant’s claim for protection against CIDTP was processed as a non-refoulement claim under all applicable grounds except torture risk (which had already been disposed of back in 2013 and would not be reviewed): persecution risk[3], “BOR 2” risk[4] and “BOR 3” risk[5].
9. On 13 April 2016, the applicant filled in a supplementary claim form. He attended another screening interview on 20 June 2016. He continued to receive legal advice and representation from the DLS. By the DLS’ letters dated 10 June 2016 and 10 November 2016, the applicant supplied the Director with additional documents and information.
Director’s Decision
10. The Director found the NRF Claim unsubstantiated for persecution risk[6], “BOR 2” risk[7] and “BOR 3” risk[8], principally on the ground that the risk of harm from the BH is low upon the applicant’s return to the Abia State, his home for over 25 years. His claimed fear of the BH is farfetched, if not feigned. It is based largely on the generic country condition of Nigeria, unsupported by any real personal risk. The applicant himself had never met, or been troubled by any BH militant. The Nigerian government is determined in combating terrorism and protecting its people. It has made joint efforts with neighbouring countries to eradicate the BH. People are safe in areas within Nigeria not controlled by the BH. Christians are not particularly at risk due to their religious faith. That the applicant’s family has continued to stay trouble-free in the Abia State shows that the applicant’s escape to Hong Kong to avoid being harmed by the BH, even if genuine, was an over-reaction.
Appeal to Board and Board’s Decision
11. The applicant appealed against the Director’s Decision to the Board.
12. The Board conducted a rehearing of the NRF Claim on 27 October 2017, at which the applicant testified before, and answered questions by, the Board through an Igbo/English interpreter.
13. The Board dismissed the appeal on all the 3 relevant grounds for non-refoulement protection. It found many of the assertions by the applicant to be inconsistent with objective facts and materials and concluded that the applicant does not face more than a remote possibility of being targeted for any reasons in the reasonably foreseeable future if he returns to Nigeria.
Application for leave for judicial review and Judge’s Decision
14. By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 1237/2018 on 29 June 2018, which was out of time, the applicant sought leave to apply for judicial review of the Board’s Decision, without stating any grounds for relief. The affirmation filed by the applicant on the same date merely asserted that his life is in danger and exhibited the Board’s Decision.
15. As the applicant did not ask for an oral hearing, the Judge determined his application on the written materials before him. His reasons can be found in [12] to [17] of the Form CALL-1:
“12. As mentioned in paragraph 1 above, the applicant’s application is late. The Court of Final Appeal in H v Director of Immigration & AH v Director of Immigration [2020] HKCFA 22, 14, July 2020, Fok PJ held:
‘… a judge cannot proceed with an out of time application for leave to apply for judicial review without considering whether there is good reason to extend time for the making of the application, his decision on that particular issue is not a discrete decision separate to his decision whether or not to grant leave to apply for judicial review. … the aspect of delay is intrinsically bound up with the question whether leave to apply for judicial review should be granted… since the merits of the substantive application is one of the factors relevant to the question of whether there is good reason for extending time to apply (see [37(2)] above), it would be highly artificial to treat a decision on an extension of time application as separate and discrete from the decision to grant or refuse leave to apply.’ [39]
I shall therefore consider the merit of the applicant’s case.
13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. See paragraph 9 above.
14. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
‘13.… …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director), the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’
15. His ground in support of this application is only his opinion without any evidence or specific in support of it. It does not assist his application.
16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
17. There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.”
Appeal to Court of Appeal - grounds of appeal and submission
16. By the notice of appeal filed herein on 23 March 2021 and supplemental notice of appeal dated 14 May 2021, the applicant made the general complaint that the Board’s Decision disregarded, or underestimated, his dangerous situation and invited this court to look into his case critically.
17. By written submission dated 13 July 2021, the applicant repeatedly mentioned the volatile and grim state in Nigeria. As explained to the Board, he did not report to the authority right upon landing in Hong Kong because he was unfamiliar with the legal system here. The assessment of the immigration officer was procedurally erroneous as the officer just followed the book and had not been culturally and politically sensitive to what was happening outside Hong Kong. Nor has the Board thoroughly understood the adverse situation that he went through.
18. The applicant appeared in person at the hearing of the appeal on 10 August 2021. An Igbo/English interpreter was present to provide language assistance. The applicant repeated what he says to be the correct current condition of Nigeria, and alleged that the Judge had misunderstood or ignored the same.
Discussion
Court of First Instance’s role in judicial review in non-refoulement cases
19. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The role of the court in judicial review is not to re-assess the non-refoulement claim. The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].
Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim
20. An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant. The Court of Appeal will generally not admit fresh evidence unless the 3 requirements laid down in Ladd v Marshall[9]are met. Nor will it normally entertain any new arguments that are fact sensitive that should have been raised in the court below. In short, the Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2)].
21. As summarised in [10] and [13] above, the NRF Claim failed on the facts at both stages of the USM. The question whether the applicant would be at risk of life or torture if he is refouled to Nigeria and, if so, whether any such risk would be negated or reduced by state protection are questions of fact within the province of the Board (after the Director). His complaint that the Judge had misunderstood or ignored the current condition of Nigeria, which is relevant to these questions, are in our view misconceived. The applicant has not advanced any public law reason in his proposed ground for judicial review or ground of appeal, properly so called, that tackles the negative finding of fact against him regarding the risk of life/torture. Indeed, the much-repeated bare assertion that he would face danger if he should return to Nigeria is inconsistent with the finding of both the Director and the Board.
22. In short, the applicant did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality in the finding by the Board. That being the case, the application for leave for judicial review of the Board’s Decision was hopeless and rightly dismissed.
23. Nor did he in the notice of appeal or the written or oral submission before us identify any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong. We cannot discern any either.
Disposition
24. For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.
(Thomas Au)
Justice of Appeal |
(Lisa Wong)
Judge of the
Court of First Instance |
The applicant, unrepresented, appeared in person
[1] There is controversy surrounding the applicant’s true identity. He entered Hong Kong with a passport issued to one ANI Emeka Augustine borne on 19 February 1973. NWADOBE Chinatu Elvis and 18 August 1980 are his alleged true name and date of birth.
[2] That is, a foreseeable and real present risk of torture which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[3] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[4] This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[5] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.
[6] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[7] This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[8] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.
[9] [1954] 1 WLR 1489.
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