RE ELHADJ ADAMOU SANI

CACV 148/2021

[2021] HKCA 1289

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 148 OF 2021

(ON APPEAL FROM HCAL NO 678 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  On 26 March 2021, Deputy High Court Judge Bruno Chan (“the Judge”)[1] refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non‑refoulement Claims Petition Office (“the Board”) dated 6 April 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 23 March 2017 rejecting the applicant’s non‑refoulement claim.

2.  On 7 April 2021, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The applicant was born in Niger and raised in Nigeria.  He last arrived in Hong Kong on 13 July 2013 using his Nigerian passport and was permitted to remain as a visitor until 18 July 2013.  He did not depart and overstayed, and his passport was used by another person for intended departure from Hong Kong on 18 July 2013.  The applicant was arrested by police on 18 December 2013 and was transferred to the Immigration Department on 20 December 2013. He lodged a non‑refoulement claim on 22 December 2013.

4.  The applicant’s claim was based on the fear that, if he returned to Nigeria, he would be harmed or even killed by the chief priest of the village of Umuagor or by the advisors to the deceased village chief who was known by the title of Eze.  He also feared that if he returned to Niger, he would be in danger because he is Christian, while the local people in Niger are Muslims.  The factual background was set at paragraphs 1 to 12 and 25 to 54 of the Board’s decision, and was succinctly summarized by the Judge at [2]–[3] in his decision contained in the Form CALL‑1.

5.  By notice of decision dated 23 March 2017, the Director assessed the applicant’s non‑refoulement claim on all applicable grounds and determined it against the applicant.  The applicable grounds are BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5] 

6.  The applicant appealed to the Board against the Director’s decisions.  An oral hearing was held on 8 January 2018, during which the applicant answered questions from the Board.  The Board considered the applicant’s narrative to be implausible and speculative, and in particular rejected the applicant’s claim of being drugged and abducted for human sacrifice in Nigeria and of his subsequent escape while drugged.  The Board also found as a fact that the applicant had never been harmed in Niger due to his religious belief.  The Board found that there was no real risk of harm in the event of refoulement.  The Board also found that reasonable state protection was available and that internal relocation was viable.  As a result the Board dismissed the appeal on 6 April 2018 on all the applicable grounds.

Decision of the court below

7.  On 19 April 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  He did not set out any grounds for judicial review in his application.

8.  Following consideration of the application based on the documents only, on 26 March 2021 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [8]–[11] of the Form CALL‑1 as follows:

“ 8. On 19 April 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 affirmation of the same date he merely attached copies of the decision and other documents previously submitted to the Immigration Department but without putting forward 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 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.

9. 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.

10. 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 or to return to Niger, there is simply no justification to afford him with non‑refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

11. 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.”

Appeal to this Court

9.  On 7 April 2021, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal are that he will face hardship if he were to return to his home country, that the Board relied on news sources that are not officially recognized, or are simply hearsay, and on outdated cases, and that the lack of credible sources of information resulted in the Board making groundless speculations.

10.  Despite the directions issued by the Registrar of Civil Appeals on 29 June 2021, the applicant has failed to lodge any written submissions.  In accordance with those directions, the hearing date of the appeal is vacated and the appeal is disposed of on paper without an oral hearing.

11.  The applicant did not identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision.  This in itself is fatal to the appeal.

12.  In the present case, the Board rejected the applicant’s claim because it found the applicant’s factual account to be implausible.  The Board also found that internal relocation was viable and that reasonable state protection was available.  Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds.  There was nothing put before the Judge to show that the Board committed any public law error.  The Judge is plainly right to refuse leave. 

13.  For these reasons, this appeal is dismissed.