OGUZIE IKECHUKWU CHARLES v. TORTURE CLAIMS APPEAL BOARD

CACV 469/2021

[2022] HKCA 135

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 469 OF 2021

(ON APPEAL FROM HCAL NO 1518 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 30 September 2021, Deputy High Court Judge Bruno Chan refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning the applicant’s non-refoulement protection claim[1]. The applicant filed a Notice of Appeal against the judge’s decision on 12 October 2021.

2.  The applicant is a national of Nigeria. He is 56 years old. He last arrived in Hong Kong on 17 May 2007 as a visitor. On 19 May 2007, he was arrested by the police for money laundering when he was trying to withdraw money from a bank account with a Namibia passport of another person upon the instruction of his business partner Jerry. He was subsequently convicted and sentenced to imprisonment of 28 months. He raised a torture claim on 11 April 2008 when he was serving his sentence. His claim was made on the basis that he will be harmed or killed by Jerry upon return to Nigeria for disclosing Jerry’s illegal activities to the police. His torture claim was later treated as a non-refoulement claim under the Unified Screening Mechanism.

The Director’s decisions

3.  By a Notice of Decision dated 24 November 2014, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on torture risk[2], BOR 3 risk[3] and persecution risk[4].

4.  The Director assessed that the level of future risk of harm upon the applicant’s return is low. The Director observed that the applicant had never encountered any harm from Jerry but only received some indirect and hearsay threats. The applicant’s assertion that his mother’s death was caused by Jerry is based on hearsay information not supported by reliable evidence. The Director also considered that the feared ill-treatment originated from a private dispute which has nothing to do with his race, religion, nationality, membership of a particular social group or political opinion. The Director did not accept that the applicant’s fear is well-founded. Moreover, the Director held that the availability of state protection and internal relocation alternatives further lowers or negates the perceived risk.

5.  By a Notice of Further Decision dated 8 May 2017, the Director rejected the applicant’s claim on BOR 2 risk[5] in the absence of response from the applicant to the invitation to submit additional facts which may be relevant to his non-refoulement claim.

The Board’s decision

6.  The applicant appealed against the Director’s first decision to the Board on 4 December 2014. He attended the hearing before the Board on 27 October, 13 November and 9 December 2015. Before the Board delivered its decision, the Director issued the notice of further decision as mentioned above. Hence, the Board considered both decisions of the Director in its determination. The Board held that the applicant was untruthful. The Board observed that the applicant gave changing accounts on how and when he came to know Jerry as well as his agreement with Jerry. The Board did not accept that the applicant had supplied to the Hong Kong police any information regarding the money-laundering participants for the 2007 incidents. In particular, the applicant was cited as a solo criminal for all the 3 money-laundering acts and the admitted facts in the criminal proceedings showed that the applicant was the only person responsible for the entire incident. The Board noted that the applicant did not know Jerry’s full name, contact details or address, and found it difficult to envisage how a criminal investigation could begin with a general common name “Jerry” with no other characteristics. Besides, the Board also did not accept that the death of the applicant’s mother was related to any possible grudge arising from the said money-laundering activities, as the death happened 6 years after the money-laundering events and there is lack of information to indicate the involvement of the money-laundering group. In conclusion, the Board found no reasonably credible or probable account of events to infer that the applicant would likely be at risk of harm under any of the applicable grounds and dismissed the appeal on 5 June 2018.

The intended judicial review

7.  The applicant filed a Form 86 and an affidavit on 1 August 2018 to seek leave to apply for judicial review against the decision of the Board. He put forward these grounds in his supporting affidavit which may be summarised as follows:

(1)  The Board’s statement that there is no violation of human right in Nigeria is false. Nigeria is a place where rich and influential people can do anything and Jerry is one of them. He wants to kill the applicant.

(2)  The applicant is just a human being so after some years he just could not describe things in the manner he had said those things in the past. That does not mean the statements are not the same.

(3)  The Nigerian police only follow money and power and Jerry is rich.

(4)  It would be cruel for the Hong Kong government to send him back home for his children to grow up without their father.

(5)  The Board cherry-picked online materials which are not the facts.

The judge’s decision

8.  The applicant attended the hearing before DHCJ Bruno Chan on 19 January 2021. The day before the hearing, the Director of Legal Aid filed a memorandum of notification of the applicant’s application for legal aid. The judge proceeded with the hearing as scheduled with the indication that he would not make a decision pending the outcome of the application for legal aid, and in the event that legal aid was not granted within 4 weeks, he would proceed to deliver judgment.

9.  On 31 August 2021, the Director of Legal Aid filed a memorandum of notification that the applicant was refused legal aid. The judge handed down his judgment on 30 September 2021.

10.  The judge considered that the applicant failed to show any error of law, irrationality or procedural unfairness in the Board’s decision. He assessed that the applicant’s intended challenge does not have any prospect of success and dismissed the leave application.

Grounds of appeal

11.  The applicant stated these grounds of appeal in his affidavit filed on 12 October 2021 which may be summarised as follows:

(1)  The judge reached his decision without properly taking into account the nature of the disclosure the applicant made to the Hong Kong police against the mastermind of the money laundering syndicates which would lead to serious harm or death upon his arrival in Nigeria.

(2)  The judge did not take into consideration the warning the applicant received from Jerry’s associates. His mother was killed by Jerry and his associates. The judge failed to properly review the Board’s unreasonableness and miscarriage of law.

(3)  The judge failed to acknowledge that the applicant’s case fell within the jurisdiction of torture and BOR 3 risk and the Board had misapplied the law.

(4)  The judge failed to examine and consider seriously other factors and circumstances to see if there exist strong compassionate or humanitarian reasons or other special extenuating circumstances warranting exceptional consideration, as the applicant is married to a Hong Kong permanent resident and their three children were born in Hong Kong.

(5)  The judge erred and inflicted more injury to the wound when he stated that the death of the applicant’s mother by Jerry was merely hearsay and speculation.

(6)  The judge failed to attach enough credence to the applicant’s case, in particular the real and personal risk of being subjected to ill-treatment under BOR 3 risk.

(7)  The current situation in Nigeria is critical and dangerous because of political instability, social unrest, extrajudicial killings, unknown gunman attacks, the Islamic State in West Africa Province, Boko Haram, Fulani Herdsmen attacks, banditry, kidnapping, insurgency and militancy.

12.  The applicant filed a further affidavit on 6 January 2022 without leave. He confirmed that he would like to adopt the grounds attached to his last affidavit filed on 12 October 2021 as his skeleton argument. He also stated that Nigeria has recently plunged into serious political instability, violence and attacks. He attached 6 news articles in this respect.

13.  At the hearing of the appeal, the applicant handed up to the court a news article on Nigeria dated 8 August 2021 in “Sunday Vanguard” concerning the spate of violent incidents, kidnapping, abductions and attacks on schools in July and August 2021. He emphasised that his situation is different from a single man in that he is married in Hong Kong in 2010 and has 3 children. It would be difficult for him as a family man to take his children to his home country in light of the violent situation and the kidnapping which has become commonplace.

Legal Principles

14.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

15.  The role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases the court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board. Assessment of evidence and Country of Origin Information 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.

16.  Furthermore, an appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced to the judge. The Court of Appeal would only reverse the decision of the judge if it could be demonstrated that there were errors in law, that the judge failed to take into account relevant matters, or the decision was otherwise plainly wrong. See Re Masud Md [2021] HKCA 1449 at §27.

Analysis and disposition

17.  The Board had thoroughly assessed the applicant’s case and its decision is well founded. In particular, the Board had considered that the applicant did not know any sufficient information of Jerry which can incriminate Jerry or assist in the criminal investigation against Jerry. The applicant also failed to provide credible explanation for his incoherent and inconsistent accounts of events.

18.  Furthermore, as pointed out by the Board, the death of the applicant’s mother happened 6 years after the money-laundering incident, there is lack of details surrounding the death and no reliable evidence showing the involvement of Jerry and/or his associates. The applicant does not have any evidence to refute the Board’s findings.

19.  As for the current situation of Nigeria, the applicant twice attempted to adduce new evidence in support of his submissions without obtaining leave from the court. The Registrar of Civil Appeals made it clear in the directions on 1 November 2021 that no other document or written submission shall be lodged without leave of the court and document or submissions lodged without leave will not be considered. In any event, if there has in fact been a significant change of circumstances as asserted since the applicant’s claim was finally determined, it is open to him to make a subsequent claim to the Director in light of his current circumstances under Section 37ZO of the Immigration Ordinance (Cap 115), see Ram Chander v Director of Immigration [2018] HKCA 585 at §§8 to 18; Amandeep Kumar v Torture Claims Appeal Board [2019] HKCA 1369 at §13; Poinem v Torture Claims Appeal Board [2020] HKCA 911 at §15. The allegation of change of circumstances is not a valid ground of appeal against the judge’s refusal to grant leave to apply for judicial review.

20.  The applicant’s family circumstances in Hong Kong being his marriage to a Hong Kong permanent resident and his children born here are not valid grounds or relevant consideration in relation to his own non-refoulement claim.

21.  The rest of his grounds are just bare assertions without basis.

22.  He has failed to demonstrate any errors in law in the judge’s decision, that the judge had failed to take into account relevant matters, or had taken into account irrelevant considerations, or that the decision was otherwise plainly wrong. No viable ground has been put forward to reverse the judge’s decision.

23.  As none of the grounds of appeal are of merit, we therefore dismiss this appeal.

[1] [2021] HKCFI 2925

[2] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[3] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[4] This refers to the risk of suppersecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).