ATTAH VALENTINE IKENNA v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1321/2018

[2020] HKCFI 1531

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1321 of 2018

     Application for Leave to Apply for Judicial Review

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

Following:

Leave to apply for judicial review refused

Observations for the Applicant:

1.  The Applicant is a 35-year-old national of Nigerian who last arrived in Hong Kong on 22 January 2018, but when he was refused entry by the Immigration Department, he raised a non-refoulement claim on the basis that if he returned to Nigeria he would be harmed or killed by the local security agents and/or the government authorities due to his sexual orientation and gender identity (“SOGI”).  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Aji, Enugu, Ezike, Enugu State, Nigeria.  After leaving school he worked as a salesman in a company providing sales service of motor car spare parts.

3.  One day in March 2017 while he was working in the shop, a regular customer Ernest approached him with a view to form a homosexual relationship, but his approach was rejected by the Applicant as homosexual activity was unlawful in Nigeria.

4.  Thereafter the Applicant continued to ignore Ernest’s approach, until one day in August 2017 when he could not resist the gift of a new motorbike from Ernest and agreed to secretly spend time with him in his friend’s house.

5.  One day on 17 December 2017 while they were engaging in sexual activities in the friend’s house, some security agents guarding the local village broke through the door to try to arrest them, but the Applicant managed to escape through the window and hid in the bushes when he heard Ernest screamed, but when the screaming suddenly stopped, the Applicant suspected that Ernest had been killed by those security agents.

6.  Fearing that those security agents would be coming after him, the Applicant then fled to Village Onukwo to hide in a friend’s place, but when he felt that it was still not safe to remain in Nigeria, he therefore departed on 21 January 2018 for Thailand through Kenya, and from there he later arrived Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 21 February 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

7.  By a Notice of Decision dated 9 March 2018 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“persecution risk”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by the security agents upon his return to Nigeria due to the absence of any past ill-treatment from them, that there is no reliable evidence that Ernest had been harmed or killed by the security agents or that they were looking for the Applicant when he was able to leave Nigeria without problem, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Nigeria with a large population of 190 million people spread across a vast territory of more than 910,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Nigeria away from his home district in large cities such as Lagos where it would be difficult if not impossible for those security agents to locate him.

9.  On 21 March 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 7 June 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 22 June 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board found no credible evidence from the Applicant of his alleged SOGI as a homosexual, that he had only claimed to have one homosexual relationship in his life, that his multiple inconsistent accounts of the core incident of him being discovered of having homosexual activities with Ernest by the security agents had in fact been fabricated or wholly unreliable that he was not a credible or reliable witness that it rejected his alleged SOGI as a homosexual man had placed him at risk of harm or that he might be at risk of persecution because homosexuality could be attributed to him that his claim for non-refoulement protection failed on all applicable grounds.     

11.  On 9 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for his intended challenge:

(1) that the Director and the adjudicator reached the decisions wrongly in assessing the Applicant’s non-refoulement claim in that they were not reasonable or fair as required by the Wednesbury test;

(2) that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting the Applicant’s claim;

(3) that the Director failed to take into account the argument that the Applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(4) that the Director failed to consider or give sufficient weight to those relevant COI which support the Applicant’s aversions that the police in his country would not be able to protect;

(5) that the Director referred to relevant COI which suited his pre-conceived conclusion which was a clear case of unfair attitude which is in itself enough to render his decision void;

(6) that the Director failed to consider the fact that the corruption and incompetency of the administration in his country is still a very serious problem as reported by various human rights organizations which stated testament to the Applicant’s assertions;

(7) that the Director failed to attain the high standards of fairness required by the Wednesbury test in the decision and as such it should be considered unreasonable in the scope of Public Law;

(8) that the adjudicator failed to make sufficient enquiries before finalizing the determination; and

(9) that the adjudicator failed to give sufficient chance to the Applicant to arrange relevant evidence to his non-refoulement claim as well as his appeal.  

12.  These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in the decisions, or in what way were their decisions unfair or unreasonable, or what relevancy was state acquiescence to his claim, or how did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did they fail to apply high standards of fairness in assessing his claim, or in what way did the adjudicator fail to make sufficient enquiry or to give him sufficient opportunity to provide relevant evidence for his claim or his appeal.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and even now in his leave application before me, the Applicant did not provide any further evidence or advance any further representation for his claim.  As such and in the premises I do not find any of these grounds reasonably arguable for his intended challenge.

13.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

14.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 20 – 77 of its decision with the benefit of hearing his oral evidence and his answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

15.  It is clear to me from the decision that the Board did properly follow the approach laid down by the UK Supreme Court in HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 (07 July 2010) in its consideration of the Applicant’s sexual orientation and whether he had a well-founded fear, and that it did conduct a thorough and careful examination of all the evidence indicating the Applicant’s behavior, his likely behavior on return to Nigeria, as well as the consequences of such behavior before arriving at its conclusion as noted above.       

16.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

17.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1