NWOKEDIKE AUCHI PETER v. TORTURE CLAIMS APPEAL BOARD

HCAL 2580/2018

[2021] HKCFI 2588

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2580 of 2018

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 44-year-old national of Nigeria who arrived in Hong Kong on 25 July 2011 with permission to remain as a visitor up to 4 August 2011 when he did not depart and instead overstayed and was arrested by police on 13 August 2011. 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 certain social group of the local community over certain land dispute with his family and/or by various terrorist and militant groups in Nigeria and/or by the Muslim community in Gambia due to his Christianity. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born in Igbo ethnicity in Enugu State, Nigeria and was raised in Ondo State after moving there with his family. After leaving school he worked as a school teacher in Ondo State where his family owned some inherited land.

3.  In 2009 while working as a teacher in Akure he learnt from his eldest brother that a dispute had arisen between his family and certain social group Umuokpara in the local community over their family land and was warned not to go home to avoid any risk arising from the dispute, but later when he was told by his father that some of his brothers had been killed as a result of attacks by the Umuokpara people, he departed Nigeria in 2009 for various neighboring countries and eventually for Gambia where he worked as a school teacher and later met his fiancé who was a Muslim, but as he was a Christian, some of the local Muslim community were against their relationship.  

4.  In July 2011 while he was visiting Hong Kong, he was told by his fiancé’s family that his fiancé had been killed by a Muslim extremist group in Gambia. As a result he became fearful for his life arising from various risks of harm from various sources in Nigeria and Gambia, he therefore overstayed in Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 19 May 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.  By a Notice of Decision dated 6 July 2016 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the Umuokpara group and/or other terrorist or militant groups such as Boko Haram upon his return to Nigeria as low due to the absence of any past ill-treatment from them, that there is simply no evidence of any direct threats against him from any of these groups in Nigeria or from the Muslim community or any religious extremists in Gambia other than hearsays or speculations, 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 181 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 to such area such as Imo State with a predominantly Igbo population and with Christianity as the main religion and where it would be difficult if not impossible for his perceived enemies to locate him.

7.  By a Notice of Further Decision dated 8 September 2017 the Director upon considering his additional submissions relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”) rejected the Applicant’s BOR 2 Claim after finding that his case did not engage the BOR 2 ground and that he had failed to establish a personal and real risk of being arhitrarily deprived of his life in violation of BOR 2 Risk upon his return to Nigeria.

8.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 19 July 2016, and for which he attended an oral hearing on 6 August 2018 before the Board with his lawyer from DLS during which he gave evidence and answered questions put to him by the Adjudicator for the Board and with submissions made on his behalf by his lawyer. On 17 September 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.  In its decision the Board found no reliable evidence other than hearsays or speculations of any threats of harm from any of those groups of people whom the Applicant claimed to fear or that he had suffered any physical or mental harm under any of the applicable grounds, and that in any event in the absence of any official involvement in any such threats that state/police protection would be available to him upon his return to Nigeria as well as reasonable internal relocation for him to safely move to other area without any risk of being located that his claim for non-refoulement protection in Hong Kong failed on all applicable grounds.     

10.  On 16 November 2018 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, and in his supporting affidavit of the same date he merely repeated his claim of fear of harm upon return to his home country but without putting forth any proper ground for his intended challenge, 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 fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim 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.          

13.  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.

14.  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