UKEH SIMON CHIBUEZE v. TORTURE CLAIMS APPEAL BOARD

HCAL 1261/2019

[2023] HKCFI 1739

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1261 OF 2019

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

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 27-year-old national of Nigeria who arrived in Hong Kong on 2 December 2014 as a visitor with permission to remain up to 16 December 2014 when he did not depart and instead overstayed, and was arrested by police on 21 January 2015. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Nigeria he would be harmed or killed by the Islamist terrorist group Boko Haram for refusing to join their group. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Makurdi Benue State, Nigeria to a Christian family where he attended a military secondary school during which 3 of his classmates claimed to be members of Boko Haram and tried to persuade him to join the group, and when he refused, they would threaten and beat him with wooden sticks.

3.  One day in June 2013 while on the way home from school, the Applicant was confronted by those 3 classmates together with some masked armed men who claimed to be members of Boko Haram and demanded that the Applicant joined them, and when he refused, they beat him and slashed him with knives that he suffered cuts and bruises all over his body, but he eventually managed to make his escape from those men by hiding in the bushes.

4.  After he made his way back home, the Applicant was told by his family that one of his cousins had also been killed by Boko Haram for refusing to join their group, and so he fled from his home district for Lagos where he found a job working as a security officer for a company.

5.  While he never had any personal encounter with any members of Boko Haram during his stay in Lagos, the Applicant was still fearful for his life as he still received threatening phone calls and messages from Boko Haram, and so on 1 December 2014 he departed Nigeria for Hong Kong where he subsequently overstayed, and after his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) in March 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 30 April 2018 the Director of Immigration (“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”).

7.  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 risk of him being harmed or killed by the Boko Haram upon his return to Nigeria due to the low intensity and frequency of past ill-treatment from them, that after all these years since he left his home district and later his country that it is not accepted that there would still be any adverse interest in him, that in any event 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 areas of the country away from his home district or the strong hold of Boko Harm in the northeastern part of Nigeria and in large cities such as Lagos where he had before without any incidents and where it would be difficult if not impossible for the Boko Haram to locate him.

8.  On 14 May 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 20 November 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 15 March 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence given in his appeal hearing and different from those given earlier to the Director that it doubted the credibility of his claim of fear of harm from the Boko Haram that caused him to leave his country to come to Hong Kong, that there is no evidence even on his own case of any direct threats from Boko Harm during his stay in Lagos for one year prior to his departure of Nigeria that it is not accepted that even if such threats from Boko Haram were real that they would still have any adverse interest in him all these years after he fled from his home district to Lagos and then when he left the country, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to Nigeria if resorted to as well as reasonable internal relocation for him to move safely to other part of the country away from his home district and south of the country from the influence of Boko Haram such as Lagos where he had stayed before without incidents or any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 10 May 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date, nor did he request any oral hearing for his application. As such and in the absence of any error of law or irrationality 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 for his intended challenge.

11.  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.

12.  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 43 – 98 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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.

13.  The fact is that it has also been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nigeria, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.  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.

15.  Furthermore, the Applicant subsequently filed an affirmation requesting to withdraw his application as his dependent visa has been approved but without providing any relevant details or supporting documentary evidence.

16.  In the premises, as I am for the stated reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his request to withdraw his application, I accordingly dismiss 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

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