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HCAL 2865/2018
[2021] HKCFI 1116
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2865 of 2018
BETWEEN
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Azubuine Solomon Kingsley |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative
Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge P. Li:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
1. According to the Immigration record, he visited Hong Kong on 4/9/2010. He claimed his name was Chukwudozie Onyedika Althanasius, born on 27/5/1977. He was allowed to stay until 25/9/2010.
2. He was arrested on 25/1/2011 for overstaying. At that time, he claimed his name was Onyedika Althnassus, born on 27/5/1977.
3. He was transferred to the Immigration Department for investigation. He claimed his name was Azubuine Kings Solomon, born on 5/1/1975. He lodged a torture claim on 28/1/2011. The torture claim was rejected by the Director on 20/8/2013. His appeal was dismissed by the TCAB on 9/1/2014.
4. In 2016, he lodged a supplementary claim[1] in this case under the USM. The Director rejected his claim on 9/5/2017. His appeal was rejected on 21/9/2018. He filed a leave application on 13/12/2018.
5. He feared that he might be harmed or killed by Arusiokonga (‘A’) who was the youth leader of the adjacent village and a member of the vigilante group Bakassi Boys. He also feared that he might be persecuted because of his Igbo origin.
Background
6. The applicant was born in Nigeria[2] on 5/5/1971. He was ethnic Igbo and a Christian. His father and 4 younger siblings lived in Nigeria. His mother was deceased. He had education for 12 years. He was a trader in Lagos from 1992—2004. He and his family had not joined any organization in Nigeria. They had never been arrested or imprisoned in Nigeria.
7. He had married a Hong Kong permanent resident in 2013.
The land dispute
8. His father inherited a plot of farmland from his grandfather. It was in his father’s name. ‘A’ and the people from the adjacent village claimed that the land belonged to them. His father refused to transfer the land to them. They threatened his father. They poisoned and killed his elder brothers and sister in 1983, 1984 and 1994. They also used black magic on his family.
9. He reported to the police but could not afford a bribe. There was no investigation.
Mother’s death
10. In 1994, his mother was shot by someone. He thought it was done by the people from the adjacent village as they made many death threats to his mother before the murder. His father reported to the police but no one was charged.
Attack at the home village
11. In 1992, he left his home village to start a business in Lagos. He returned to the home village in 2004 intending to develop his father’s land.
12. At the first night after his return, three men intruded his house while he was sleeping. They were masked. They beat him with metal. He fainted. He was eventually sent to a hospital in Lagos and stayed there for 5 months.[3]
13. His father reported the attack but the police did not investigate as his father could not pay any bribe.
14. He returned to the home village after discharged from the hospital. He received threats from the people of the adjacent village. However, he was safe at home.
15. He returned to Lagos in 2007 for a year, he sold all his properties. He was safe there. However, his family was threatened.
16. He returned to the home village in 2008—2009. Although there were constant threats, he felt safe there. Sometime in 2009, a friend informed him that the people from the adjacent village planned to attack him seriously. He thus fled to Abuja. He stayed there at his friend’s place until sometime in 2010. He started to arrange a visa to leave Nigeria.
17. Shortly afterwards, his younger brother was mistakenly attacked at the family house at the home village. His brother’s leg was fractured. He was in fear while staying in Abuja.
18. His younger brother helped to arrange a passport for him in another name. He left Nigeria on 4/9/2010. He did not immediately apply for protection after he entered Hong Kong. He was ignorant about the scheme. He lost his passport before the expiry of the visa.
19. He contacted his family shortly before the interview with the Director. He learned that all goods in his younger brother’s shop were destroyed in 2012. His father was attacked and pushed off his bicycle in 2013. Both received death threats.
20. He thought it was difficult to relocate in Nigeria as he could not mix with the Muslims. There was no peace in all cities. He thought the freedom guaranteed by the Constitution was empty words.
21. On 30/5/2016, the Nigerian police and military dispersed a peaceful procession by force causing casualties. The procession was organized by the IPOB and MASSOB [4] to commemorate their past leader who advocated an independent state for Biafra. This was an example that the Nigerian government persecuted the indigenous Igbo people.[5]
22. He pointed out that the Nigerian government had tried to suppress the Igbos as they fought for independence.
The Decision of the Director
23. The Director rejected his claim on 9/5/2017. The Director concluded that the risk of harm was low. The reasons were:
(a) The land dispute had already occurred before he was born in 1971. Until his brother was poisoned in 1983, he did not recall any incident happened to his family in these 12 years. His family remained in the home village without any trouble from ‘A’ and Bakassi Boys. This showed that the risk of harm was not imminent.
(b) There was a series of poisoning in 1983, 1984 and 1994 of his brothers and sister leading to their deaths. His family remained in the home village. There was no evidence to support his suspicion that it was done by ‘A’ and the people from the adjacent village. He even left home for Lagos to start his business in 1992. His conduct was inconsistent with someone who was in fear of his life. His father had not complained to other authorities.
(c) The murder of his mother in 1994 could not assist the other party in taking the land. The land was in his father’s name. There was insufficient evidence to support that the murder was committed by the people of the adjacent village. His father had not complained to other authorities.
(d) He stayed in Lagos safely from 1992 to 2004. In this period, his brother and mother was allegedly murdered. Nothing happened to him despite the hostility asserted by him.
(e) He returned to the home village to develop the land in 2004. This showed that he did not perceive any danger at that time. He was attacked on the very first night after his return, it did not result in more serious injuries or death despite he was beaten and fainted. He was able to get treatment in Lagos. There was no intention to kill him. In fact, there was no evidence the attackers were from the adjacent village.
(f) He returned to the home village after discharged from the hospital. He remained safe from 2004—2009.[6]
(g) In 2009, he fled to Abuja. He was safe there. This showed that the people of the adjacent village had no intention to harm or kill him. They might not even be able to locate him.
(h) His father was pushed off his bicycle but not seriously harmed. This was to put pressure on him to return to Nigeria. The land was in his father’s name. The target should be his father instead of the applicant.
(i) His family was ethnic Igbo. They had never joined any organization. His father and siblings had never been detained or imprisoned. There was no evidence that they had joined the procession in May 2016. There was no evidence that they were targeted by the government.
24. The Director pointed out that some COI revealed that there was separatist pressure in Nigeria on ethnic and religious grounds. The BH [7] was an Islamic militant terrorist group in the North. They had continuous conflict with the armed force in Nigeria. There was abuse of human rights by the BH. The Bakassi Boys was a vigilante group which carried out extra judicial killing and arbitrary arrests of criminals. There were also COI showing peaceful transfer of power in 2015. There were measures undertaken by the Nigerian government to improve police professionalism. Anti-terrorism squad was set up. There were multinational armed forces against the BH. The government would not tolerate the Bakassi Boys albeit that their aim was to reduce crime. The president was determined to restore peace, fight corruption and fight terrorism. The COI showed that the current government did not tolerate the BH or Bakassi Boys. There were PCC and NHRC for investigating complaints.[8] Judging from the available COI, the Director concluded that there was reasonable State protection in Nigeria. [9]
25. Nigeria was a big country of more than 900,000 km2. There was a large population. The law in Nigeria permit internal movement. Lagos was a viable alternative for the applicant. He was also safe in Abuja. The Abia state was also an appropriate choice. It would not be unreasonable for him to relocate within Nigeria.
26. The Director rejected his claim on BOR 2, BOR 3 and persecution grounds.
The Decision of TCAB
27. The adjudicator held 3 hearings [10]. The applicant gave evidence. The adjudicator rejected the claim on 21/9/2018.
28. The adjudicator found that the applicant was not credible. There were important inconsistencies. Most of his evidence was bare assertion. The main points were as follows:[11]
(a) The applicant appeared hostile and evasive. His evidence was vague with insufficient details.
(b) The applicant alleged that he was a member of the IPOB. This was never mentioned anywhere in his NCF, SCF or at the interview before the Director. It was not in his notice of appeal to TCAB. He only disclosed it on the first day of the TCAB hearing. On the final day of the TCAB hearing, he even claimed that he had joined the IPOB shortly after he left school. He explained that he was not aware of the importance of this fact. He forgot this membership when he came to Hong Kong as he was devastated then. The adjudicator considered that it was no excuse. This critical information was highly relevant to persecution risk. He should have disclosed it at the first reasonable opportunity.[12]
(c) The applicant mentioned on the last day of the hearing before the TCAB that he attended events organized by the IPOB. He supported the secession for Biafra. He mentioned on one occasion that the military fired at them in Onitsha. He explained that he was confused and had a lot of events in his mind. He did not mention this anywhere before. The adjudicator found this undermined his credibility seriously. The applicant actually indicated in his NCF and SCF that he had not joined any organization or harmed by any authorities in Nigeria.[13]
(d) The applicant only mentioned one attack on him at his father’s house in 2004 by the people from the adjacent village. However, he mentioned to the TCAB that there were many life threatening attacks before he left home for Lagos in 1992.
(e) The applicant mentioned to the TCAB that his father was seriously injured during the same attack in 2004. He explained that he did not mention this before as he only concentrated on himself.
(f) The applicant mentioned to the TCAB that ‘A’ had sent death threats to his mother. He did not mention this to the Director or the NCF. He explained that whoever assisted him failed to record in the NCF.
(g) He mentioned to the TCAB that he was discriminated and faced violence because of his Igbo ethnicity in Lagos. This was inconsistent with his claim to the Director that he was safe there. In fact, the COI did not indicate that the government was targeting Igbo in Nigeria.
(h) The applicant asserted that he learned about ‘A’ being a member of the Bakassi Boys in 1993. This was inconsistent with the COI that the Bakassi Boys only came into existence in 1998.
(i) According to some COI, the IPOB only existed in 2012. It contradicted the applicant’s assertion that was a courier of IPOB around 2000.
(j) The applicant’s father was the owner of the land. It was unconvincing that the people from the adjacent village targeted him instead of his father in the land dispute. In fact, there was no documentary evidence to support the land dispute.
(k) The adjudicator did not accept the explanation of the applicant in relation to the different particulars of his identity, i.e., his name and date of birth, to the police and Immigration Department. He even used a different signature in his SCF. The adjudicator opined that this was a clear attempt to obstruct or delay the processing of his claim.
(l) There was a photograph in which the applicant and his wife were depicted attending rally in Hong Kong in support of the IPOB in 2017, However, based on the totality of evidence, the adjudicator did not accept that he was an active member in Nigeria.
29. The adjudicator was not persuaded that the background facts of his claim were factually accurate. The applicant was not a reliable witness. The adjudicator rejected his claim that there would be real risk of harm if he was refouled. The adjudicator rejected his claim based on BOR 2, BOR 3 and persecution risk.
30. The adjudicator also rejected the claim under Article 19 of the HKBORO (rights of family life). The applicant was not entitled to base his claim on this by virtue of s. 11 of the HKBORO. The separation from his wife did not amount to cruelty or ill-treatment.[14]
Judicial Review
31. The applicant filed the leave application for judicial review on 13/12/2018. In his affidavit, the applicant asserted the following main points:
a. His permanent physical disability [15] could not be cured. The TCAB should give more tolerance due to his condition. He submitted a medical report dated 5/2/2018 from Dr. Samuel Leung, Specialist in Neurosurgery.[16]
b. His father died on 22/4/2018 in Nigeria. He and his brother would inherit the land. He therefore was the next target to be killed. He submitted a death certificate of his father.[17]
c. The adjudicator mistakenly found him as a courier of IPOB, whereas he was the courier of MASSOB. He was only informed of a rally in Hong Kong of IPOB in 2017. He thus joined the rally after 2017.
d. The Nigerian government monitored the movement of dissidents. He was in fear he would be killed by 2 Islamic groups [18] because of his status as a Christian.
e. The interpreter in the TCAB could not fully translate his answers. He actually spoke calmly and gently.
32. The applicant attended a hearing fixed by this court on 2/2/2021. In the hearing, he confirmed that he married in Hong Kong in 2013. He had a child 1 year and 8 months of age. He could not take his wife and child back to Nigeria. It was not safe in Nigeria because of terrorists and kidnaps. He had been rejected twice by the Director in his dependent visa application. He pleaded for mercy.
33. In a leave application, this court would consider whether there is any error of law or procedure. Whether the decisions of the TCAB was reasonable. This court would not interfere with the finding of facts unless it is obviously wrong.
34. The TCAB has the duty to ascertain the facts. It is not for this court to embark on any fact finding exercise. The applicant has a duty to disclose full material facts in support of his claim. Any failure may affect his credibility. [19]
35. Despite the above, I have the following comments as to the points raised in the affidavit in support of the leave application:
a. The medical report by Dr. Samual Leung was dated 5/2/2018. It should be available during the TCAB hearings in February and March 2018. Had it been submitted, it must have been referred to by the adjudicator. However, it was never mentioned in the TCAB decision. Nor was it mentioned by the applicant’s lawyer. In any event, the applicant did not give evidence as to how he was affected by this injury since 2004.
b. The applicant asserted that his father died on 22/4/2018 and produced a death certificate. This was meant to explain why he was targeted by the people from the adjacent village. The attack of his siblings and the applicant took place from 1983 to 2004. It was during the lifetime of his father. The adjudicator’s query is valid that his father should be the target instead of the applicant.
c. There was no record in the TCAB decision that the applicant mentioned that he was the courier of MASSOB.
d. The applicant had never mentioned Fulani Herdsman and their killing of Christian to the Director or the TCAB.
e. The adjudicator had observed the applicant during the hearing. His assessment of the applicant’s attitude should be most accurate. In any event, the adjudicator did not reject the applicant’s evidence merely on demeanour, the inconsistencies and implausibility of the evidence were the major factors.
36. The applicant’s wife submitted a letter in support of the leave application. She shared the applicant’s assertion that the condition in Nigeria was inhuman and violent. She stressed that the applicant was a good husband and took care of the family. They just wanted to lead a peaceful life in Hong Kong.
37. The adjudicator had analyzed the evidence in detail. He correctly pointed out the inconsistencies of the applicant’s evidence in the NCF, SCF and the TCAB. The adjudicator found that the applicant was not credible. The adjudicator rejected the factual bases of the applicant’s claim.
38. In my view, the adjudicator’s conclusion is reasonable. The applicant failed to prove he was personally at risk of any ill-treatment or harm if refouled. There is no error of law and procedure in both decisions.
Conclusion
39. I refuse leave for judicial review. This case is not reasonably arguable. There is no reasonable prospect of success.
Dated the 27th day of April 2021.
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(Mike Mak) |
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for Registrar, High Court |
Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant
on 27 April 2021
Azubuine Solomon Kingsley
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 27 April 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 7199/17/5/205/NI143
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1410/16
(formerly RBCZ 2002697/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Only on BOR 2, BOR 3 and persecution risk.
[2] Okija, Anambra State.
[3] He asserted that his skull was ‘opened’ to release pressure on the brain. He became hemiplegic on the left side for 3 years. He was not sure if it was due to the surgery or the injuries.
[4] Indigenous People of Biafra and Movement for the Actualisation of Sovereign State of Biafra.
[5] Decision of the Director dated 9/5/2017, §§55—59.
[6] He returned to Lagos for a year during this period but he was safe there.
[7] Boko Haram.
[8] Public Complaints Commission and National Human Rights Commission.
[9] Decision of the Director dated 9/5/2017, §§94—120.
[10] 20/2/2018, 2/3/2018 and 13/3/2018.
[11] Decision of the TCAB dated 21/9/2018, §§138—190.
[12] Decision of the TCAB dated 21/9/2018, §§141—146.
[13] Decision of the TCAB dated 21/9/2018, §§154—155.
[14] Decision of the TCAB dated 21/9/2018, §§197—203.
[15] He claimed that some part of his right brain was gone.
[16] Attachment A, affidavit dated 13/12/2018.
[17] Attachment B, affidavit dated 13/12/2018.
[18] Boko Haram and Fulani Herdsmen.
[19] S. 37ZD, Immigration Ordinance.
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