AZUBUINE SOLOMON KINGSLEY v. TORTURE CLAIMS APPEAL BOARD/ NON REFOULEMENT CLAIMS PETITION OFFICE

CACV 231/2021

[2022] HKCA 1364

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 231 OF 2021

(ON APPEAL FROM HCAL NO 2865 OF 2018)

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JUDGMENT

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Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1.  On 10 May 2021, the Applicant, acting in person, filed a Notice of Appeal against the order of Deputy High Court Judge P Li (“the Judge”) dated 27 April 2021 refusing to grant him leave to apply for judicial review (“the Order”) of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 21 September 2018 (“the Board’s Decision”), whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 9 May 2017 (“the Director’s Decision”).

2.  On 30 June 2021, the Applicant, though Patricia Ho & Associates, filed a Supplementary Notice of Appeal.

3.  We heard the Applicant’s appeal on 15 September 2022.  He was represented by counsel and solicitors at the hearing.  This is our judgment on the appeal.

BACKGROUND FACTS

4.  The Applicant is a Nigerian national.  He entered Hong Kong as a visitor on 4 September 2010 using a false passport, and was permitted to remain in Hong Kong until 25 September 2010.  He overstayed, and was later arrested by the Police on 25 January 2011 for illegally remaining in Hong Kong.  He gave multiple identities (using different names and dates of birth) to the Police / Immigration Department on different occasions (see §§164-168 of the Board’s Decision).

5.  On 28 January 2011, the Applicant lodged a written signification with the Director claiming non-refoulement protection. In 2013, prior to the commencement of the Unified Screening Mechanism, the Applicant lodge a Torture Claim Form (“TCF”) with the Director.  The TCF was completed on 24 June 2013 with the assistance of the Duty Lawyer Service. On 20 August 2013, the Director rejected the Applicant’s torture claim.  On 9 January 2014, the Board rejected the Applicant’s appeal against the Director’s decision to reject his torture claim.

6.  In 2016, the Applicant lodged a Supplementary Claim Form (“SCF”) for non-refoulement protection with the Director. The SCF was completed on 7 July 2016 with the assistance of the Duty Lawyer Service.

7.  By the Director’s Decision dated 9 May 2017, the Director rejected the Applicant’s non-refoulement claim on all remaining applicable grounds, ie persecution risk, BOR 3 risk and BOR 2 risk other than torture risk.

8.  The Board heard the Applicant’s appeal against the Director’s Decision on 20 February 2018, 2 March 2018 and 13 March 2018.  The Applicant was represented by a lawyer at the hearings, and gave evidence in support of his appeal.  By the Board’s Decision dated 21 September 2018, the Board rejected the Applicant’s appeal, and confirmed the Director’s Decision.

9.  Before the Director and the Board, the Applicant relied on multiple grounds in support of his claim for non-refoulement protection, including:

(1)  his fear of attack or harm by neighbouring villagers, in particular a man called Arusiokonga (“A”), over a land dispute;

(2)  his fear of persecution by the Nigerian Government on account of his Igbo ethnicity, a minority group in Nigeria;

(3)  his fear of harm by the Nigerian Government / Fulani herdsmen on account of his Christian religious faith; and

(4)  his fear of harm by the Nigerian Government on account of his membership of the Indigenous People of Biafra (“IPOB”), a political organization which espouses the causes of the Igbo people in Nigeria and calls for the establishment of a separate Biafran State in Nigeria (this claim was raised by the Applicant for the first time in the course of the appeal hearing before the Board).

10.  The Board considered the Applicant’s claim and evidence in great detail, and found numerous problems and inconsistencies, which the Judge summarised at §28 of the CALL-1 Form ([2021] HKCFI 1116, “the Decision”), as follows:

“(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 [TCF], 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.

(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.

(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.”

11.  The Board reached the following “credibility conclusions” at §§172 and 173 of the Board’s Decision:

“[172] In the final analysis, the Appellant’s claims consist of little more than a series of assertions that are unsupported by any reliable objective evidence and are also subject to multiple problems outline above.

[173] After assessing the evidence in the round, in view of the constellation of serious problems with the Appellant’s evidence already highlighted, the Board is not persuaded, even to the low standard required, that the material events and the conditions that he described in Nigeria, upon which his claim is based, are factually accurate.  In the assessment of the Board, with the possible exception of his sur place activities in Hong Kong since 2016[1] (which the Board will assess separately), the Board finds his evidence to be lacking in credibility in its totality and not even the centre piece of his claims can be regarded as reliable.”

12.  The Board made the following “Material Findings” at §§183-190 of the Board’s Decision:

“[183] For the reasons stated, the Board rejects the Appellant’s claim that he would be at risk by the neighbouring villagers, including Arusiokonga and/or the Bakassi Boys, should he return to Nigeria.

[184] The Board also rejects his claim that if he is refouled to Nigeria he will also be at risk there by reason of his Christian religion. There is no evidence the Appellant ever suffered any harm in Nigeria in the past as a result of his being a Christian. There is no evidence of discrimination against Christians by the Nigerian authorities. The Appellant has spent virtually the whole of his life in the south of Nigeria. The evidence suggests that the principal risk to Christians in Nigeria comes from Boko Haram and is confined mainly to the North of Nigeria.

[185] The Board also rejects the Appellant’s claim that if he is refouled to Nigeria he will also be at risk there by reason of his Igbo ethnicity. Even by his own account the only difficulties he ever faced in Nigeria in the past by reason of his Igbo ethnicity was occasional discrimination and violence from private individuals. The COI does not indicate that the Nigerian government is targeting all Igbos or inhabitants of the east or south of Nigeria as imputed separatists.

[186] For the reasons stated, the Board also rejects the Appellant’s claim that he became an IPOB member in Nigeria before he left for Hong Kong and/or that he was engaged in and/or actively supported any pro-Biafran secessionist movement(s) while he lived there.

[187] The Appellant produced photographs in support of his claim to have joined IPOB in Hong Kong. The photographs purport to show him and his wife in attendance at a public rally in support of IPOB in Hong Kong on 30 May 2017. In them the Appellant and his wife are wearing what appear to be IPOB t-shirts and his wife carries an IPOB placard. Although [not] prepare to go so far as to conclude that it is true, based on those photographs and his supporting testimony, to which the Board is prepared to attach some credence, the Board is prepared to accept the possibility that the Appellant may have joined the IPOB in Hong Kong as an ordinary member in or about October 2016 and may also have participated in low level IPOB activities there, as he claims. However, based on the totality of the evidence, the Board finds that his interest and involvement in the IPOB in Hong Kong, if any, is not based on any genuine interest and involvement in the cause of IPOB but rather has been engineered by him with the deliberate intention of bolstering his non-refoulement claim.

[188] Given these findings, in particular the Board’s findings as to the lack of authenticity of the Appellant’s interest and involvement in IPOB in Hong Kong, the Board rejects his claim that he would be likely to engage in IPOB activities on his return to Nigeria.

[189] By his own account, the Appellant was only ever a low level member of the IPOB in Hong Kong and he does not hold a leadership position. By his own account, the photographs that he claims show him and his wife attending a pro-IPOB rally in Hong Kong have never been disseminated. There is no evidence he will be identified by the Nigerian authorities as a prominent IPOB activist in Hong Kong on his return to Nigeria. Furthermore, there is no evidence that the Nigerian government targets for serious ill-treatment ordinary IPOB members returning from abroad, on account of their activities there.

[190] On the basis of the evidence accepted, the Board does not consider there is a real risk of harm to the Appellant, arising from any of his claims, in the event of his refoulement to Nigeria.  Accordingly, the Board has reached the following conclusions with respect to each of the applicable grounds.”

13.  The Board then considered each of the applicable grounds for non-refoulement protection (namely, persecution risk, torture risk, BOR 2 risk and BOR 3 risk), and rejected the Applicant’s non-refoulement claim on all those grounds (see §§191-206 of the Board’s Decision).

APPLICATION FOR JUDICIAL REVIEW

14.  On 13 December 2018, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground of judicial review was set out in the Form 86.  The Applicant raised the following main points in his affirmation in support of the application, as summarized by the Judge at §31 of the Decision:

“a. His permanent physical disability 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.

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.

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 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.”

15.  On 2 February 2021, the Applicant attended a hearing of the application for leave to apply for judicial review before the Judge.

16.  On 27 April 2021, the Judge dismissed the Applicant’s application for leave to apply for judicial review, for the following reasons:

“[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.

[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.

[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.”

THE APPEAL

17.  As mentioned at the beginning of this judgment, on 10 May 2021, the Applicant filed a home-made Notice of Appeal against the Order. On 30 June 2021, the Applicant’s solicitors filed a Supplementary Notice of Appeal on his behalf.  It is clear from Mr Baker’s Skeleton Argument on behalf of the Applicant dated 22 August 2022 that the Applicant no longer relies on the grounds raised in the Notice of Appeal, but instead relies on the Supplementary Notice of Appeal in support of the present appeal.

18.  We shall accordingly focus our consideration on the grounds raised in the Supplementary Notice of Appeal.  For the sake of completeness, we should mention that we have considered the Notice of Appeal, but do not consider that the grounds raised in that document have merits.

19.  Before we deal with the grounds raised in the Supplementary Notice of Appeal, we note that the Applicant’s solicitors have lodged with the Court what purports to be an uncertified transcript of the hearings before the Board on 20 February 2018, 2 March 2018, and 13 March 2018, and filed an affirmation of Lam Lok Yee Rachel on 22 August 2022 exhibiting the audio recordings of the hearings (in the form of MP3 files on an USB stick). In that affirmation, it is said that the transcript was prepared by some unidentified interns at Messrs Patricia Ho & Associates who were no longer with the firm but who had listened to the audio recordings and confirmed that the transcription was an accurate reflection of what was said at the hearings. Ms Lam has not mentioned when it was that the audio recordings were obtained, or transcript prepared.

20.  The Applicant has not sought, or obtained, any leave of the Court to adduce the audio recordings or transcript as new evidence in this appeal.  The Applicant (with assistance from counsel and solicitors) previously applied for leave to adduce new evidence in respect of other materials (namely, 4 medical reports and 2 articles containing country of origin information), but did not include the aforesaid audio recordings or transcript as part of the application.  The previous application was refused by the Court of Appeal on 21 December 2021 (constituted by Au and Chow JJA, [2021] HKCA 1940), and his application for leave to appeal to the Court of Final Appeal was also refused by the Court of Appeal on 15 July 2022 (similarly constituted, [2022] HKCA 860).

21.  Mr Baker submits that the audio recordings and transcript of the hearings before the Board are not new evidence, and therefore leave is not required to rely on them for the purpose of the Applicant’s appeal.  We do not accept this submission.  The audio recordings or transcript were not before the Judge.  The Applicant now wishes to rely on them to contend that the Board failed to observe the duty of joint endeavour and the Judge failed to subject the Board’s Decision to anxious scrutiny.  Plainly, the audio recordings or transcript are new evidence, and the Applicant ought to have made a proper application for their admission as new evidence if he wishes to rely on them in support of the appeal.  In any event, even if the Applicant had made such an application, we would not have been minded to grant leave for the audio recordings and transcript to be admitted as new evidence for the purpose of the appeal.  To justify the admission of new evidence, the Applicant has to satisfy the three Ladd v Marshall conditions (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(3)).  In this case, the Board’s Decision was given on 21 September 2018, while the hearing of the application for leave to apply for judicial review took place nearly 2.5 years later on 2 February 2021.  It is plain that the first Ladd v Marshall condition (ie that the relevant evidence could not have been obtained with reasonable diligence for use in the court below) is not satisfied.  We also do not consider that there is any, or any sufficient, exceptional circumstance to justify exercising our residual discretion to admit the new evidence notwithstanding the non-satisfaction of the Ladd v Marshall conditions.

22.  Accordingly, the Applicant is not entitled to rely on the audio recordings and transcript of the hearings before the Board in this appeal.

DISCUSSION

(i)  Applicable principles

23.  The Court’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14 (omitting citations of authorities):

“(1) 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 scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. 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.

(2) An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge. In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3) It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited. In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirements in Ladd v Marshall [1954] 1 WLR 1489.

(4) In respect of new argument, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

(5) Further, due to the difference in the role of the Court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision makers have a positive duty to elicit such materials on their own volition.

(6) In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge, the appeal should be dismissed. It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).”

24.  It is important to bear these principles in mind when considering the present appeal, because many of the arguments advanced by Mr Baker in support of the Applicant’s appeal are based on facts and matters which were not before the Judge and/or the Board, or new arguments which are fact-and-evidence sensitive, or new grounds which were not advanced by the Applicant in the application below, or amount to an invitation to the Court to carry out a primary review of the evidence or examine the decision of the Board afresh.

25.  Three grounds of appeal are raised in the Supplemental Notice of Appeal:

(1)  no consideration of cognitive ability and mental health;

(2)  no review of IPOB risk; and

(3)  credibility.

(ii)  Ground (1) - no consideration of cognitive ability and mental heath

26.  Under Ground (1), the Applicant argues that the Judge:

(1)  erred in holding that the Board’s conclusion was “reasonable” (§38 of the Decision) because a medical report by Dr Leung (dated 5 February 2018) was not considered by the Board and the Applicant “did not give evidence as to how he was affected” by his injuries (§35(a) of the Decision) (§3 of the Supplemental Notice of Appeal);

(2)  the Judge failed to have regard to the Applicant’s ill mental health (§4 of the Supplemental Notice of Appeal);

(3)  the judge failed to subject the Board’s Decision to anxious scrutiny.  Had he done so, he would have found that the Board -

(a)  failed to consider at all or sufficiently the effect that the Applicant’s injuries and mental health may have had on his apparent demeanour, memory, consistency (including with COI), order to and level of details in his testimony, ability or tendency to state the entirety of relevant facts, as well as the time at and circumstances under which facts would be disclosed;

(b)  failed to obtain, consider and apply best practice relevant to how and to what degree the Applicant’s injuries and mental health may have affected his cognitive ability, and the manner and quality of his evidence, thereby breaching the duty of joint endeavour;

(c)  failed to obtain and consider further factual evidence relevant to the Applicant’s cognitive ability, including the medical report by Dr Leung dated 5 February 2018, and mental health, in breach of inter alia the duty of joint endeavour;

(d)  failed to consider whether and/or to what extent the Applicant’s account had been impacted by his cognitive ability and/or mental health;

(e)  improperly limited consideration of the claim to the facts and arguments advanced by the Applicant, omitting obvious and reasonably arguable points in the Applicant’s favour, including that his injuries and mental health had gravely prejudice his cognitive ability; and

(f)  failed to consider the effect of the Applicant’s cognitive ability and/or mental health on the quality, tone and impact of the interpretation (§5 of the Supplemental Notice of Appeal).

27.  At §6 of the Supplemental Notice of Appeal, it is stated that the Applicant will seek leave to adduce and rely on 3 medical reports as new evidence in support of Ground (1).  The Applicant’s application for leave to adduce those items of new evidence has been refused by the Court of Appeal (see §20 above).  Accordingly, Ground (1) must be considered by reference to the existing evidence before the Judge.

28.  The Applicant’s argument mentioned in §26(1) above involves a twisted reading of the Decision.  The Judge’s statement at §38 of the Decision that the Board’s conclusion was reasonable was a general, overall, conclusion, whereas the Judge’s analysis at §35(a) of the Decision dealt specifically with the point raised by the Applicant at §1 of Appendix 1 to his affidavit filed on 13 December 2018.  There, the Applicant argued that the “stakeholders” (presumably a reference to the Director and/or the Board) should have given him some more tolerance due to his physical and/or mental conditions, and he relied upon a medical report of Dr Samuel Leung dated 5 February 2018 in support of this argument.  At §35(a) of the Decision, the Judge pointed out that Dr Leung’s medical report should have been available at the hearings in February and March 2018.  It was, however, not mentioned in the Board’s Decision or by his lawyers, which they would have done had the report been submitted to the Board for its consideration.  At the hearing of the present appeal, Mr Baker confirmed that Dr Leung’s report was never submitted to the Board.  Even if the report had been submitted to the Board, we do not consider that it would have made any different to the Board’s assessment.  The report mentioned that the Applicant had a history of head injury with depressed fractured skull, and he complained about side body pain and poor hand control.  The doctor stated that clinically, the Applicant could cope with the majority of his daily activities, his speech was OK, and there was no history of epilepsy.  However, in view of the extent of cerebral contusion with persistence of depressed fractured skull, the Applicant had “x5 chances” of developing epilepsy which might require more personal attention from his wife.  There is nothing in Dr Leung’s report of 5 February 2018 which suggests that the Applicant’s head injuries had any effect on his cognitive functions or abilities.  The Judge also observed that the Applicant never gave any evidence to the Board as to how he was affected by the injuries that he sustained since 2004.  In our view, the Judge’s rejection of the Applicant’s argument at §1 of Appendix 1 to his affidavit cannot be faulted.

29.  In respect of the Applicant’s argument mentioned in §26(2) above (namely, that the Judge failed to have regard to the Applicant’s ill mental health), as mentioned in Nupur Mst, at §14(3), assessment of a non-refoulement claimant’s evidence is generally a matter within the province of the Board and the Director.  In an application for judicial review, the court only carries out a supervisory function.  The duty of anxious scrutiny is in relation to the decision of the Board, but does not require a judge to assess the evidence afresh.  The issue of mental health as raised by the Applicant was adequately dealt with by the Judge at §35(a) of the Decision.

30.  The Applicant’s argument mentioned in §26(3) above is that the Judge failed to subject the Board’s Decision to anxious scrutiny.  The Applicant contends that had the Judge done so, he would have found that the Board failed to consider the Applicant’s mental conditions and breached the duty of “joint endeavour”.  In the application below, the Applicant only raised a very narrow complaint arising out of his mental conditions which we have already dealt with in §28 above.  The Applicant’s contention that the Board breached the duty of joint endeavour is a new ground which the Applicant is not entitled to raise for the first time in the Court of Appeal.  For the sake of completeness, we shall deal with this new ground.  

31.  The duty of joint endeavour on the part of the Board must be considered in context and reasonably.  The Applicant was legally represented in the appeal before the Board.  If the Applicant’s injuries or mental health conditions had, or might have, some significant impact on his cognitive functions or abilities, or affected, or might affect, the manner and quality of his evidence as alleged in §5(1) of the Supplemental Notice of Appeal (referred to in §26(3)(a) above), it could reasonably be expected that the Applicant’s lawyer would have raised the matter with the Board, and produced relevant medical evidence for the Board’s consideration.  Although the Applicant told the Director that in April 2004, he was attacked by 3 masked men with metal objects which caused injuries to his skull (§§60 to 62 of the Board’s Decision), and repeated the same when giving evidence to the Board (namely, that he was attacked by some unknown persons and seriously wounded in an incident which occurred in April 2004, see §91 of the Board’s Decision), he never suggested that the injuries caused him any cognitive impairment.  The Applicant had numerous opportunities to give evidence concerning any impairment to his cognitive functions or abilities in the course of the assessments of his non-refoulement claim by the Director (in the TCF and SCF, and during screening interviews on 2 August 2013 and 29 July 2016) and the Board (involving 3 hearings) over a lengthy period of time from 2013 to 2018 with legal assistance throughout, but he never raised the issue of impairment to his cognitive functions or abilities as a result of the previous injuries sustained by him.  His lawyer also did not submit to the Board that the Applicant was suffering from any serious cognitive impairment which might affect the quality or consistency of his evidence or the manner in which he gave evidence.

32.  In the Board’s Decision, the Board expressly gave consideration to whether there might be mitigating reasons, including difficulties with memory, physical and mental health, mental or emotional trauma, fear and/or mistrust of authorities, for any deficiencies in the Applicant’s evidence (see §136 of the Board’s Decision).  The Board also expressly gave due allowance for the Applicant’s possible difficulties with memory arising from emotional trauma when he first arrived in Hong Kong and/or possible ongoing mental health issues afterwards (including the Applicant’s claim that he was suffering from Bipolar disorder), but was not satisfied that such possible difficulties or mental health issues could explain the serious problems concerning his credibility, in particular the last minute disclosure by the Applicant on the final day of the appeal hearing that he had been a long term member of IPOB in Nigeria (see §§145-146 of the Board’s Decision).

33.  Mr Baker relies upon the judgment of Barma JA in Kulwinder Kaur v Director of Immigration [2022] HKCA 48 to argue that the Board ought to have further investigated the Applicant’s mental health and considered whether his mental conditions were responsible for the problems in his evidence, and refers to the following passages in the judgment of Barma JA:

“[50] The Adjudicator also found the applicant’s allegation of the attempted kidnap in November 2014, which was only put forward after her claim was rejected by the Director, to be false because he thought it incredible that the applicant would have forgotten to mention such a serious incident. Mr Parker complains that no inquiry or investigation was made into the applicant’s mental health despite it having always been her case that she had a history of mental illness and had, moreover, suffered a traumatic head injury in the first car attack. He submitted that if the Adjudicator was going to draw an adverse inference from her failure to raise this incident earlier, he ought to have inquired into her mental health, and should not have assumed that her memory functioned normally.

[51] We think that this is also an instance where high standards of fairness were arguably not observed.  While we would not go so far as to say that the Adjudicator ought to have called for a medical report merely because the applicant alleged in her grounds of appeal to the Board that her mental health was poor and her memory was not good, it seems to us that, if he was minded to draw an adverse inference against the applicant’s credibility based on her failure to have mentioned the attempted kidnap at an earlier stage of the proceedings, it is reasonably arguable that he ought to have at least informed her of his concerns, and explained the consequences of her refusal to answer questions and deal with them.  Depending on her answers, it might be that the state of her mental health or memory would have to be investigated. But the problem here is that the applicant was not fairly informed of the consequences of her silence, and may thus have mistakenly thought that not answering questions would not adversely affect her case.”

34.  The learned judge’s observations must, however, be read having regard to the factual circumstances in that case, including that (i) it had always been the applicant’s case there that she had a history of mental illness, and, more importantly, (ii) the adjudicator in that case did not draw the applicant’s attention to his concerns that she had failed to mention the attempted kidnap at an earlier stage of the proceedings, or the consequences of her refusal to answer questions and deal with the adjudicator’s concerns. On the other hand, the Board in the present case discussed with the Applicant at length during the course of the appeal hearing in relation to what the Board considered to be an “extraordinary feature of his evidence”, namely, the last minute disclosure of his alleged long-term membership of IPOB and associated activities in Nigeria and the fact that he had joined the IPOB in Hong Kong (see §§142-145 and 154-155 of the Board’s Decision), as well as other problems and unsatisfactory features of his evidence, and sought his explanations for them: see §§147-150 (in respect of alleged threats and attacks on him and his family members arising out of the land dispute), §§156-157 (in respect of alleged problems arising from his Igbo ethnicity), and §169 (in respect of his use of different identities), of the Board’s Decision.

35.  In his submissions on behalf of the Applicant to the Board, the Applicant’s lawyer agreed that “the central issue for the Board to decide was whether or not the Applicant’s evidence was credible”.  He asked the Board “to consider whether inconsistencies in his evidence and other issues adversely affecting his credibility, went to the core of his claim”, and submitted that “it had not been demonstrated that the Appellant had lied and, given the lapse of time since the events in issue, the Board should afford him some leeway” (see §123 of the Board’s Decision).  The Applicant’s lawyer did not suggest that the inconsistencies and problems in the Applicant’s evidence could be due to some mental health problems or cognitive impairment on the part of the Applicant.

36.  As pointed out by Cheung CJHC (as he then was) in TK v Jenkins [2013] 1 HKC 526, the high standard of fairness, including the duty of joint endeavour, boils down to common sense and fairness:

“[22] How the requirement of high standards of fairness would modify or otherwise affect, in practice, the burden of proof as it is otherwise generally understood would obviously depend on the circumstances of each individual case. As was pointed out in Prabakar (para 53), many if not most of these torture claimants may have fled from their countries concerned with few belongings and documents and their levels of education may be relatively low. The difficulties of proof faced by them in this situation should be fully appreciated to meet the high standards of fairness required. High standard of fairness may therefore require the Director to conduct investigation and obtain relevant information and materials on general country conditions depending on the facts and issues raised in a case.

[23] On the other hand, it should be noted that in Prabakar, the Court of Final Appeal was concerned with an unrepresented torture claimant, whereas under the enhanced screening mechanism, a torture claimant is represented and assisted by the Duty Lawyers Scheme.  Within reasonable bounds, the torture claimant’s side is expected to conduct its own investigation and obtain information and materials that it requires to prove its case. Ultimately, the matter boils down to commonsense and fairness.”

37.  In the overall circumstances of the present case, we consider it to be contrary to common sense and fairness to suggest that the Board breached the duty of joint endeavour, or failed in any of the aspects as alleged in §5(1) to (6) of the Supplemental Notice of Appeal (see §26(3)(a) to (f) above).

(iii)  Ground (2) - no review of IPOB risk

38.  Under this ground, the Applicant argues that the Judge failed to review or adequately review the Board’s treatment of the risk to the Applicant emanating from his association with or membership of IPOB (§7 of the Supplemental Notice of Appeal).  The Applicant contends that applying the anxious scrutiny and/or appropriately calibrated standard of review, the Judge would have found that that the Board:

(1)  improperly speculated and/or inferred without adequate basis that the Applicant would not be “identified” by Nigerian authorities and that “ordinary” IPOB members would not be targeted;

(2)  failed to consider whether and what risk the Applicant faced having partaken in IPOB activities in Hong Kong;

(3)  failed to consider whether and what risk the Applicant faced because of imputed political association/membership and belief in IPOB;

(4)  failed to consider whether and what risk the Applicant faced by reason of his imputed political association/membership and belief in IPOB and being of Igbo ethnicity;

(5)  failed to obtain and consider relevant COI on risk generated by ‘low level activity”, by activity in Hong Kong, by imputed political association/membership and belief, and by Intersectional Risk, in breach of inter alia the duty of joint endeavour; and

(6)  refused without reason to mark and incorporate into reasoning the difference between “default” and “formally registered” membership of IPOB, which was explained by the Applicant (§8 of the Supplemental Notice of Appeal).

39.  At §9 of the Supplemental Notice of Appeal, it is stated that the Applicant will seek leave to adduce and rely on 2 items of COI that the Board would have found had it discharged the duty of joint endeavour as new evidence in support of Ground (1).  The Applicant’s application for leave to adduce those items of new evidence has been refused by the Court of Appeal.  The Court of Appeal has also explained why the duty of joint endeavour did not require the Board to locate or consider the two articles in question (see [2021] HKCA 1940, at §22).  Accordingly, Ground (2) must be considered by reference to the existing evidence before the Judge.

40.  Ground (2) is a non-starter.  The Board rejected, on the facts, the Applicant’s claim that he became an IPOB member in Nigeria before he left for Hong Kong and/or that he was engaged in and/or actively supported any pro-Biafran secessionist movement(s) while he was living in Nigeria (see §186 of the Board’s Decision).  The Board also found, on the facts, that the Applicant’s interest and involvement in IPOB in Hong Kong in or after October 2016 (if any) was not based on any genuine interest and involvement in the cause of IPOB, but rather had been engineered by him with the deliberate intention of bolstering his non-refoulement claim (see §187 of the Board’s Decision).  Subject to the Applicant’s challenges to the Board’s findings of fact under Ground (3) which we will consider below, it is clear, on the basis of the above findings of fact, that the Applicant’s complaint that the Board failed to consider, or adequately consider, the risk to the Applicant arising from his association with or membership of IPOB in Nigeria and/or Hong Kong cannot possibly succeed.

41.  There is one other matter that we should mention before we deal with Ground (3).  In the application below, the only substantive points raised by the Applicant in relation to the Board’s assessment of his claim of risk arising from his alleged association with or membership of IPOB were that:

(1)  the Board had mixed up two groups of supporters of Biafra known as IPPOB and MASSOB;

(2)  due to the fact that his father was a “Biafran fighter”, the Applicant became a “Biafran” automatically; and

(3)  the Nigerian government would notice and monitor Biafran supporters’ activities even outside Nigeria.

The complaints raised in §8 of the Supplemental Notice of Appeal, in particular that (i) the Board improperly speculated and/or inferred without adequate basis that “ordinary” IPOB members would not be targeted (sub-paragraph (1)), (ii) the Board failed to consider whether and what risk he faced by reason of his being of Igbo ethnicity (sub-paragraph (4)), and (iii) the Board breached the duty of joint endeavour (sub-paragraph (5)), are new grounds which the Applicant is not entitled to raise for the first time in the Court of Appeal.

(iv)  Ground (3): credibility

42.  Ground (3) consists of 3 sub-grounds:

(a)  adverse credibility findings;

(b)  the so-called “bad faith finding”; and

(c)  incorrect approach to burden of proof and absence of documents.

43.  In respect of Ground (3)(a), the Applicant argues that the Judge erred in holding that the application for leave to apply for judicial review was not reasonably arguable because the Board had “correctly pointed out” inconsistencies, had found the Applicant not to be credible, and had “rejected the factual bases” of the claim (§§37 and 38 of the Decision) (§10 of the Supplemental Notice of Appeal).  The Applicant contends that the Judge failed to subject the Board’s Decision to anxious scrutiny.  Applying anxious scrutiny and/or appropriated calibrated standard of review, the Judge would have found that the Board:

(1)  failed to consider that the alleged negative indicators of credibility could be or were explained (in whole or in part) by the level of the Applicant’s cognitive ability and/or mental health;

(2)  failed to consider apparent inconsistencies in the context of the Applicant’s mental Health and/or cognitive ability;

(3)  improperly equated inconsistency and/or a lack of credibility as being sufficient reason to reject the claim; and

(4)  improperly determined the Applicant’s claim by reference to, or placed too much reliance upon, his apparent demeanour (§11 of the Supplemental Notice of Appeal).

44.  Ground (3)(a) is unsustainable, for the following reasons:

(1)  The Board found, correctly, numerous and substantial inconsistencies in the Applicant’s evidence and found him not to be credible, and was entitled, on the materials before it, to reject the factual bases of the Applicant’s claim.  Having reached those views, it was clear that the Applicant’s non-refoulement claim should be rejected.  The Judge’s conclusion that the Applicant’s intended application for judicial review was not reasonably arguable cannot be faulted.

(2)  None of the matters mentioned in §11(1)-(4) of the Supplemental Notice of Appeal can begin to show that the Judge failed to subject the Board’s Decision to anxious scrutiny.  Such duty did not include the duty on the part of the Judge to carry out a primary review of the Applicant’s evidence.  As mentioned in Nupur Mst, at §14(1), the primary decision makers are the Board (and the Director).  Assessment of evidence is 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.  In respect of §11(1)-(2) of the Supplemental Notice of Appeal, we have already dealt with the Applicant’s argument concerning his cognitive ability and mental health conditions above.  In respect of §11(3) of the Supplemental Notice of Appeal, the Applicant’s lawyer expressly agreed that “the central issue for the Board to decide was whether or not the Appellant’s evidence was credible” (§123 of the Board’s Decision).  In our view, the Board was entitled to find that the incredibility of the Applicant was such that his claim ought to be rejected in its entirety. In this regard, it may be noted that in reaching its finding on the credibility of the Applicant, the Board took into account not just the inconsistencies in the Applicant’s evidence, but also the inherent implausibility in the Applicant’s account, the Applicant’s behaviour relating to the disclosure of his identity, the lack of supporting documentary evidence, as well as relevant COI.  In respect of §11(4) of the Supplemental Notice of Appeal, it is incorrect to say that the Board determined the Applicant’s claim by reference to, or placing too much reliance on, the Applicant’s apparent demeanour.  The manner in which the Applicant gave his testimony before the Board (see §139 of the Board’s Decision) was only one of many matters that the Board took into account in finding the Applicant to be incredible (see §141-171 of the Board’s Decision).  Overall, we do not see that there is any error of law or procedural unfairness or irrationality in the decision of the Board.

45.  In respect of Ground (3)(b), the Applicant argues that the Judge failed to review or adequately review the Board’s finding that the Applicant’s interest and involvement with IPOB in Hong Kong was “engineered” with “the deliberate intention of bolstering his non-refoulement claim” (§187 of the Board’s Decision) (§12 of the Supplemental Notice of Appeal).  The Applicant contends that, had the Judge subjected the “bad faith finding” to any review or any appropriate standard of review, he would have found that it:

(1)  lacked any or sufficient factual basis;

(2)  was not or not adequately reasoned;

(3)  was parasitic on the adverse credibility findings;

(4)  was improperly based on conjecture, unfounded assumptions, speculation, stereotyping, intuition, and/or gut feeling;

(5)  was made without the provision of adequate notice to the Applicant and an opportunity to provide meaningful representations;

(6)  was made without adequate consideration or disposal of evidence to the contrary, including photographs of the Applicant and his wife at an IPOB rally in Hong Kong; and

(7)  failed to consider that IPOB activity in Hong Kong and/or membership could give rise to imputed political association/membership and belief.

46.  As mentioned above, assessment of evidence is primarily within the province of the Board.  The Board made the finding at §187 of the Board’s Decision after having considered carefully the evidence given by the Applicant and other materials before it.  In particular, the Board took into account the fact that the Applicant initiated his non-refoulement claim in Hong Kong more than 7 years before he eventually testified at the appeal hearing, but failed to mention or disclose the fact that he had joined IPOB in Hong Kong or his previous activities in support of IPOB in Nigeria throughout that period despite numerous opportunities to do so (including in the TCF and SCF, during screening interviews, and in the notice of appeal to the Board). He made that claim only at the hearing of the appeal (see §142 of the Board’s Decision).  His explanation for the last minute disclosure (namely, that “he was not aware that it was something he should have mentioned in his [notice of appeal]” despite having been advised at all stages of his non-refoulement claim of the importance of promptly disclosing all important relevant facts) was not accepted by the Board (see §143 of the Board’s Decision).  In the absence of any good or credible explanation for the late disclosure of what was plainly highly relevant and critical information, it was, in our view, open to the Board to make the aforesaid finding.  The suggestion that the finding was made without the provision of adequate notice to the Applicant and an opportunity to provide meaningful representations has no foundation, in view of the fact that, as recorded in §143 of the Board’s Decision, the Board discussed this feature of the Applicant’s evidence “at some length during the course of his appeal hearing”.  The further suggestion that the Board made the finding without adequate consideration or disposal of evidence to the contrary, including photographs of the Applicant and his wife at an IPOB rally in Hong Kong, also cannot stand.  As a matter of fact, the Board took into account the photographs to find that the Applicant “may have” joined IPOB in Hong Kong as an ordinary member in or about October 2016 as claimed by him, but found that this was done not because of any genuine interest and involvement in the cause of IPOB (see §187 of the Board’s Decision).  The other matters raised by the Applicant at §13 of the Supplemental Notice of Appeal amount effectively to an invitation to the Court to undertake a fresh assessment of the Applicant’s evidence, which it is well established is not permissible in the present appeal. Overall, while this Court may not necessarily have made the same finding as the Board, we do not consider the Board’s finding to be irrational or unreasonable in the public law sense.

47.  In respect of Ground (3)(c), the Applicant argues that the Judge erred in holding that the Board’s conclusion was reasonable because “[t]he adjudicator was not persuaded that the background facts of [the] claim were factually accurate”, because the Applicant “was not a reliable witness”, and because the Board “rejected the factual bases of the Applicant’s claim” (§§29 and 37 of the Decision) (§14 of the Supplemental Notice of Appeal).

48.  At §15 of the Supplemental Notice of Appeal, the Applicant contends that had the Judge subjected the Board’s Decision to appropriate review, he would have found that the Board:

(1)  improperly reasoned that the claim ought to fail for want of the Applicant “proving” facts (§§184 and 189 of the Board’s Decision), contrary to the obligation to consider and weigh all available evidence cumulatively, and contrary to the rule that the Board should not “sit back” and put the Applicant to proof of the claim; and

(2)  improperly reasoned that the presence of “hearsay and speculation” and/or “bare assertions” (§§129(d) and 151 of the Board’s Decision) undermined the claim or were otherwise insufficient evidence.  This approach is contrary to the well-established approach in protection claims where the testimony of protection claimants alone could be capable of being sufficient proof, in light of the fact that those seeking protection frequently lack supporting documents.

49.  The complaint at §14 of the Supplemental Notice of Appeal has no substance.  At §29 of the Decision, the Judge stated, correctly, that “[t]he adjudicator was not persuaded that the background facts of [the Applicant’s] 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.”  At §29 of the Decision, the Judge further stated, correctly, that “[t]he 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.” It is clear from the Board’s Decision that the Board had carefully considered all the evidence and materials before coming to the “Material Findings” at §§183-190 of the Board’s Decision referred to in §12 above.  On the basis of those findings, it was inevitable that the Applicant’s non-refoulement claim would be dismissed.  The Judge’s view that the adjudicator’s conclusion was reasonable cannot be faulted.

50.  The complaint at §15(1) of the Supplemental Notice of Appeal that the Board adopted a “sit back” approach is an unfair one.  This is another attempt to argue that the Board failed the duty of joint endeavour which, as mentioned above, must be considered in context and reasonably. It is apparent from reading the very detailed decision of the Board that the Board had considered all available evidence cumulatively (see §§127 & 138-173 of the Board’s Decision) before coming to the conclusion that the Applicant’s claim was not credible at all.  Further, as noted in §34 above, the Board did not simply sit back and require the Applicant to prove his case.  The Board actively engaged with the Applicant, referred to matters of concern to the Board and sought his explanations or clarifications on those matters, even though the Applicant was fully represented by a lawyer at the three hearings of the appeal before the Board.

51.  In respect of the complaint at §15(2) of the Supplemental Notice of Appeal, the Board correctly observed that aspects of the Applicant’s evidence were “hearsay and speculation” and/or “bare assertions”. It was a matter for the Board to determine what, if any, weight should be given to the hearsay evidence and bare assertions of the Applicant.  Also, the Board dismissed the Applicant’s appeal not only because it did not accept or give weight to such evidence, but also because of other fundamental problems concerning the Applicant’s credibility.  It was not reasonably arguable that there was any error of law, irrationality or procedural unfairness in the Board’s Decision such as would justify the court’s intervention by way of judicial review.

52.  In all, the complaint that the Judge failed to subject the Board’s Decision to “appropriate review” is hollow and plainly unsustainable.

53.  Further, the complaints under Ground (3) are new grounds which were not advanced in the proceedings below.  The Applicant is not entitled to raise them for the first time in the Court of Appeal.

54.  In conclusion, none of the grounds of appeal in the Supplemental Notice of Appeal has merits.

DISPOSITION

55.  The Applicant’s appeal is dismissed.  Both the Putative Respondent and the Putative Interested Party have adopted a neutral stance in relation to the appeal.  We make no order as to the costs of the appeal.