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HCAL 2935/2018
[2020] HKCFI 2876
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2935 of 2018
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Ononiwu Okechukwu Raymond |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative
Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge P. Li:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
A. Background
1. The applicant was from Nigeria. He was born on 15 November 1968 at Umuahia, Abia State, Nigeria. His family later moved to Maiduguri, Borno State. He was a Christian. He was married. His parents and wife were killed at different times during Boko Haram attacks. He did not know the whereabouts of his two sons. He received education for 9 years. He was in business dealing with automobile parts from 1984—2012 at Lagos and at Maiduguri from 2013 to 2015. He and his family had no political affiliation.
2. From late 2013, there were frequent military attacks by a Jihadist terrorist group called Boko Haram (‘BH’). This group affiliated with ISIS. They targeted Christians in Nigeria with a view to establish an Islamic state.
1st attack (mid-February 2014)
3. In an afternoon in mid-February 2014, a group of extremists from BH rushed into his shop at Maiduguri. When they knew he was a Christian, they beat him with a club and a whip for 30 minutes. They asked him to convert to Islam or else they would kill him. They allowed him 3 months to think about it. He sustained injuries all over his body. He initially received suturing and given painkillers at a clinic. He was subsequently hospitalized for 2 days in a hospital.
4. He later made a report at Baga Police Station but the police were reluctant to investigate. He did not report to other police station as they were mostly Muslims in Maiduguri. Anyway, the law required making a report at the nearest police station.
5. Despite the danger, he did not leave Maiduguri as he had no place to go. He could not abandon his shop. BH members were everywhere in Nigeria.
2nd attack (May 2014)
6. By the end of May 2014, he had information about an imminent BH attack. He left his shop to hide in the bush. A few hours later, he returned to the locality and found his father killed. His wife and children were scared but not injured. The BH members told his wife to convert to Islam or else the whole family would be killed. He reported to the police who promised to investigate. He did not leave Maiduguri as he earned a living there.
3rd attack (January 2015)
7. One afternoon in January 2015, about 50 BH members stormed into his shop and killed his wife. He reported the murder to the police but they did not take any action. He thought most police were Muslims and compromised their duties. Since then, he stayed indoors at home. He did not feel safe and decided to leave Nigeria.
8. He paid a travel agent US $2,000 for arranging him to leave Maiduguri on 5 May 2015. He took a local flight to Lagos and then to South Africa. He eventually took a flight to Hong Kong on 14 May 2015. His mother and 2 sons were left at Maiduguri. He believed BH would not kill children and old women.
9. On 15 May 2015, he was allowed to stay in Hong Kong as a visitor until 5 June 2015. He overstayed and surrendered to the Immigration Department on 11 June 2015. He was granted bail. He filed his non-refoulement claim about 4 months later on 5 October 2015.
4th attack (28 May 2015)
10. Around 28 May 2015, he was in Hong Kong. His neighbor told him on the phone that his house and shop was burnt down. The BH members set the fire after failing to find him. His mother was killed. He could no longer contact his neighbor thereafter.
11. He had lost contact with his family and relatives in Nigeria. He dared not return as he was in fear that the BH members would kill him.
12. In 2015, a Muslim president was elected in Nigeria. The BH were more powerful and influential since then. The Muslim police would not protect him. They targeted Christians. There was no way to make a complaint. He did not think the Public Complaints Commission (‘PCC’) or the National Human Rights Commission (‘NHRC’) could help.
13. He thought it was difficult to relocate in Nigeria as ethnic and religious clashes were common. Law enforcement was ineffective. The BH members were everywhere.
The Decision of the Director
14. The Director rejected his claim on 12 October 2017. The Director concluded that the risk of harm was low. The ill-treatment did not amount to minimum level of severity. The reasons were:
(a) He was not seriously injured during the 1st attack albeit he was treated with suturing and prescribed painkillers at a clinic. He could return for follow up the next day and was hospitalized for 2 days. His daily life after that attack was not affected.
(b) The BH targeted Christians in general. He and his family were not targeted in particular. He could avoid the BH in both 2nd and 3rd attack. Had the BH wanted to kill him, they had plenty of chances to locate him at his shop.
(c) He worried about his safety however he stayed in Maiduguri with his family, even after his father and wife were respectively killed in the 2nd and 3rd attack.
(d) Given the violent attacks of the BH, he would still leave his children and mother behind in Maiduguri before leaving for Hong Kong. It was not reasonable for him to hold the belief that the BH would not kill children and old women.
(e) There was a lapse of three and a half months between the 1st and 2nd attack. About seven months between the 2nd and 3rd attack. There was ample time to arrange his family to leave Maiduguri.
(f) There was no documentary evidence that his father and wife were murdered. Nor was there any evidence that he or his family were targeted by the BH.[1]
15. There was no evidence that the police would not investigate. The applicant had not tried to complaint through other channels. It was his speculation that Muslim police would not assist Christian complainants. There was no evidence that police stations in other places of Nigeria would not accept his complaint.
16. There was no evidence of State involvement. The conduct of the BH could not be attributed to State instigation, consent or acquiescence.
17. The Director pointed out that some COI revealed that BH was a militant terrorist group and had continuing conflict with the armed force in Nigeria. There was abuse of human rights by the BH. There were also COI showing measures undertaken by the Nigerian government to improve police professionalism. Anti-terrorism squad was set up. There were multinational armed forces against the BH. The president showed respect to Christians openly in a speech [2]. He had determination to fight corruption and terrorism. The COI showed that the current government did not side with the BH. There were PCC and NHRC for investigating complaints. Judging from the available COI, the Director did not accept that the system in Nigeria was so corrupt or ineffective.[3]
18. The law in Nigeria permits internal movement. Lagos was a viable alternative for the applicant. It was in Abia State where the applicant was born. There was effective law enforcement system in Lagos. The influence of BH was less. It would not be unreasonable for him to relocate there.
19. For BOR 2 and 3 risks, the Director concluded that the injury sustained by the applicant did not amount to minimum level of severity. The facts showed that there was no evidence of arbitrary deprivation of life. Both claims failed.
20. There was no evidence that the problem arose from any Convention reason. It was a private dispute. Given reasonable State protection and internal relocation, this claim failed.
21. For torture risk, the injury was not within the definition of torture under s 37 U. There was reasonable State protection. There was no State involvement, instigation or acquiescence. This claim failed.
The Decision of TCAB
22. The adjudicator held a hearing on 30 July 2018. The applicant gave evidence. The adjudicator rejected the claim on 18 October 2018.
23. The adjudicator found that the applicant was not credible. There were important contradictions between the applicant’s story and some COI. The main points are as follows:
(a) The applicant alleged that the BH targeted Christians in Maiduguri. However, according to the BBC Timeline report, the BH targeted Christians and also moderate Muslims.
(b) The applicant believed that BH would not kill children and old women. This was contradictory to BBC and Wikipedia timelines which reported that there were mass kidnaps of women and girls. Boys were recruited as soldiers by force.
(c) According to some COI, the activities of BH were mainly at the Muslim dominated north Nigeria. There was very few incidents in the Christian dominated south west such as the Igbo states and Lagos which was the appellant’s home for 28 years.[4]
(d) In his NCF, he mentioned that his parents were killed during the attack in mid-February 2014. However, during the hearing he said his parents were killed in different occasions albeit that he had confirmed the accuracy of the NCF. [5]
(e) During the hearing, the applicant was unable to recall the killing of his wife in January 2015 which finally prompted him to leave Nigeria. He explained that the trauma had caused him to forget. This cast doubt on his credibility as that incident was recorded in the NCF.
(f) In the hearing, the appellant claimed that his children were born in Maiduguri in 2009 and 2011. His wife and children lived there for several years since then. He divided his time between Lagos and Maiduguri. Given this background, he could not be ignorant, as he claimed, about the BH activities in Maiduguri which resulted in a State of Emergency in May 2013. In fact, Maiduguri was the Jihadist heartland of Nigeria. The applicant was a Christian. It was difficult to understand his moving to Maiduguri in 2013 as he had already established his business in Lagos for 28 years from 1984-2012. [6]
(g) At the end of the attack in February 2014, the BH attackers gave the applicant 3 months to consider whether to convert to Islam. This level of generosity seemed to be inconsistent with their brutal and ruthless conducts as the applicant claimed.
(h) In the hearing, the applicant raised a new issue that he was of Igbo ethnicity and had been involved in the conflict with the Nigerian government. During the conflict in southeast Nigeria, the government killed many Igbo people. The applicant had never mentioned this in the NCF or the screening interview. He however conceded that he was never targeted by the government as a separatist.[7]
(i) Despite the killing of his father and wife, the applicant chose to stay in Maiduguri. His explanation that he wanted to operate his business for a living was unconvincing.[8]
24. The adjudicator found that there was reasonable State protection despite problems of BH insurgency and Fulani herdsmen. Various COI indicated that the State was taking active steps to address the issues.[9]
25. The adjudicator concluded that Lagos was a reasonable option for internal relocation. The applicant established a business there for 28 years. The risk of BH harm at Lagos was low.[10]
26. Given the above, the adjudicator did not accept that the events which the applicant claimed had occurred. The adjudicator found that the applicant was not threatened by the BH nor were his wife and parents killed as claimed. The adjudicator did not accept that the applicant would face any risk of serious torture or ill-treatment if returned to Nigeria.
27. For Torture claim, there was no risk of severe pain or suffering. There was no substantial ground to believe he would be subject to torture if returned to Nigeria. This claim failed.
28. For BOR 2 and 3, given the evidence, the adjudicator was not satisfied that there was a genuine and substantial risk of CIDTP or risk of arbitrary deprivation of life. Both claims failed.
29. For persecution risk, the applicant was not under well-founded fear of persecution on any Convention grounds. This claim failed.
Judicial Review
30. The applicant filed the leave application for judicial review on 21 December 2018. In his affirmation, the applicant asserted that there was unreasonable finding of facts by the TCAB. There was unreasonable finding of State protection. There was failure to consider mental suffering.
31. In a leave application, this court would consider whether there is any error of law or procedure. Whether the decisions of the TCAB and the Director were reasonable. This court would not interfere with the finding of facts unless it is obviously wrong.
32. The adjudicator had analyzed the evidence in detail. He correctly pointed out the inconsistencies of the applicant’s story. The adjudicator found that the applicant was not credible. The events claimed by the applicant did not occurr. There was no need for him to consider mental suffering in particular.
33. In my view, his conclusion is reasonable. It is consistent with the findings of the Director. There is no error of law and procedure in both decisions.
Conclusion
34. I refuse leave for judicial review. This case is not reasonably arguable. There is no reasonable prospect of success.
Dated the 12th day of November 2020.
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(Mike Mak) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant
on 12 November 2020
Ononiwu Okechukwu Raymond
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 12 November 2020
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 8895/17/10/225/NI161
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2159/17 (formerly RBCZ 13930/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Paragraphs 50-64, decision of the Director.
[2] Paragraph 90, decision of the Director.
[3] Paragraphs 77-93, decision of the Director.
[4] Paragraph 68 & 78, decision of the TCAB.
[5] Paragraph 79, decision of the TCAB. Paragraph 12 of NCF, answer 35.
[6] Paragraphs 63 & 82, decision of the TCAB.
[7] Paragraphs 51-55 & 81, decision of the TCAB.
[8] Paragraphs 84—85, decision of the TCAB.
[9] Paragraphs 70 & 86, decision of the TCAB.
[10] Paragraphs 72—74 & 95, decision of the TCAB.
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