ANI WILLIAMS CHUKWUEBUKA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1105/2024

[2024] HKCFI 3632

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1105 of 2024

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Mr Ani Williams Chukwuebuka (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 2 May 2024 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 31 March 2022 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is a Nigerian. He was born on 30 November 1992 in Enugu State, Nigeria. He received 12 years of education and claimed to have become a member of the Indigenous People of Biafra (“IPOB”) in 2014 and supported the IPOB ever since.

The Claim

3.  The Applicant claimed that he became a member of IPOB in 2014. He was promoted to the position of Provost in 2015 and his duties included disciplining other IPOB members. He became a Vice Coordinator of IPOB (Hong Kong Branch) in July 2020, and he continued to participate in IPOB activities in Hong Kong.

4.  The Applicant claimed that IPOB members were persecuted by the Nigerian government (particularly the military and the police) for seeking independence for the Biafra people.

5.  The Applicant alleged that he was arrested in February 2015 for attending an IPOB meeting and the police accused him of committing the crime of secession. The Applicant was taken to a police detention centre where he was tortured for 3.5 months. He was released after a philanthropist (“GM”) posted bail for him and he signed an undertaking not to take part in any IPOB events in the future.

6.  The Applicant claimed that he moved to Anambra State in June 2015 and started attending IPOB meetings there. The Applicant claimed that his father was arbitrarily arrested in July 2015 because the police wanted to lure him back to Enugu State, so he decided to flee the country.

7.  The Applicant kept a low profile between July and December 2015. He attended the passport office in Nigeria to apply for a passport and used the passport to travel to Mainland China in December 2015 through the official channel. The Applicant stayed in Mainland China until 1 November 2019.

8.  In October 2019, the Applicant received a call from a person identifying as a member of the Nigerian Interpol. The caller threatened to come after the Applicant and warned that he was not as safe as he thought. The Applicant therefore fled to Hong Kong.

9.  The Applicant claimed that his mother told him in November 2019 that the Nigerian army came to his house occasionally to look for him. The Applicant continued to participate in IPOB activities in Hong Kong.

10.  The Applicant claimed that he would be harmed or killed by the Nigerian authorities for being a member of IPOB if he were returned to Nigeria.

Procedural history

11.  The Applicant arrived in Hong Kong illegally on 3 November 2019. He surrendered to the Immigration Department on 25 May 2021. By a written representation of 7 June 2021, the Applicant lodged the Claim.

12.  The Director had considered the Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115;

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR; and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees.

13.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

14.  On 11 July 2024, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed his supporting affidavit on the same day (“Supporting Affidavit”). In the Form 86, the Applicant named the Director as the proposed respondent and the Board as the interested party but referred to the “Judgment of 2^nd May 2024” as the subject decision for his application. The DOI Decision was not dated 2 May 2024 but 31 March 2022. It was the Board’s Decision which was dated 2 May 2024. It is clear that the Applicant intended to apply for judicial review against the Board’s Decision in this application. I proceeded with this application on that basis.

15.  On 26 July 2024, the Applicant filed another affidavit applying to withdraw this intended judicial review application stating that his fear of his life being in danger in his country had been “settled” (“Withdrawal Application”).

The DOI Decision

16.  The Director identified several problems in the Applicant’s evidence, which undermined his credibility. The Director noted that there was a lack of corroborating evidence. The Director also noted that the Applicant admitted to attending the passport office in Nigeria and the Nigerian Consulate in Hong Kong to apply for or renew his passport. He was also able to depart Nigeria through the official channel without meeting hindrance. The Director was of the view that the Applicant’s behavior of choosing to approach the Nigerian government bodies for multiple times, which the Applicant claimed harboured great enmity against him, was sheer contradictory to the conduct of a person facing a genuine life threatening risk from the Nigerian government. The Director found that the Applicant’s perceived harm or ill-treatment from the Nigerian government was not as imminent and substantial as he asserted. The Director did not accept that the Applicant was the target of the Nigerian government. The Director assessed that the Applicant’s perceived risk of being seriously harmed or killed by the Nigerian government upon his return to Nigeria was not real and substantial.

17.  The Director further found that the Applicant had no good reason for the delay in seeking non-refoulement protection. He did not seek protection in Mainland China (where he stayed for well over three years) and did not seek protection immediately upon arriving in Hong Kong, but had waited well over a year to do so.

18.  Even if assuming that the ill-treatment suffered by the Applicant while detained by police of Enugu State did happen, the Director was of the view that the misconduct of individual officer or police station did not represent the stance of the Nigerian government. There was no indication that their illegal act or misconduct was endorsed by the government of Nigeria. On the issue of state protection, after considering the relevant country of origin information (“COI”), including a report about the attempt by the Nigerian government to negotiate with the IPOB, the Director found that reasonable state protection would be available to the Applicant, if necessary.

19.  In light of the primary facts available to the Director and the relevant COI, the Director assessed that there was not a real chance that the Applicant’s alleged risk of harm would be materialized should he return to Nigeria.

20.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

21.  After considering the Applicant’s claims including his written evidence, the record of his interview, his notice of appeal and his oral evidence given at the 2 hearings before the Board, the Board found the Applicant’s case to be incredible. The very detailed analysis of the Board was contained at §§28-77 of the Board’s Decision.

22.  The Applicant stayed in China for more than 3 years without making any claim for protection and he did not claim protection in Hong Kong until 1.5 years after he arrived in Hong Kong. He had given no good explanation for why he waited for so long before alerting anyone to his alleged political activism against the Nigerian authorities and need for international protection as a result. The Boards regarded such delay as a serious indicator of negative credibility.

23.  Furthermore, the Board found that the Applicant failed to provide any concrete corroborating evidence to support his claim, even though he claimed to be actively supporting the IPOB in Hong Kong and should have no problem in obtaining evidence of his IPOB activities. His successful attempts to obtain passports from the Nigerian government, his departure from Nigeria through the official channel and his delay in seeking protection all negatively affected his credibility.

24.  Notwithstanding the apparent consistency between the alleged ill-treatments suffered by the Applicant and the ill-treatments inflicted on other IPOB members (as seen from other credible sources), the Board found that the negative indicators of credibility outweigh any positive indicator the Applicant could rely on (§76 Board’s Decision) and rejected the Applicant’s case for being untruthful.

25.  The Board did not accept that the Applicant had ever been persecuted for being an IPOB member in the past and it did not accept that the Applicant faced any risk upon his return.

26.  The Board found that the Applicant had failed to establish his case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

27.  In a judicial review, the court does not step into the shoes of the decision makers.

28.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] 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”.

29.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

30.  The Applicant did not advance any grounds for his intended judicial review in the Form 86. In the Supporting Affidavit, the Applicant only stated: “That my life is under attack in my country. Please find attached decisions for reconsideration of judicial review.” Although the Applicant stated that he had produced the Board’s Decision and the DOI Decision as exhibits to the Supporting Affidavit, he had in fact produced the Board’s Decision and his non-refolument claim form as exhibits. As I have in any event considered the DOI Decision, the aforesaid mistake of the Applicant does not affect his application for leave for judicial review herein.

31.  No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affidavit. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

32.  Having rigorously examined the Board’s Decision and the DOI Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

33.  The Board found that the Applicant had not discharged even the low burden placed upon him to establish his claims. He failed to establish any real involvement with IPOB in either Nigeria or Hong Kong and had not established that he was detained, mistreated or otherwise harmed by the Nigerian authorities.

34.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness and irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review has no realistic prospects of success.

The Withdrawal Application

35.  The Applicant subsequently filed the Withdrawal Application on 26 July 2024 applying to withdraw this intended judicial review application. He stated that his fear of his life being in danger had been settled and he wanted to leave Hong Kong.

36.  There is no evidence to show that the Applicant made the Withdrawal Application other than out of his own volition.

37.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

38.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

Conclusion

39.  In the premise and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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