ANACHEBE CHIBUZOR REUBEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 878/2019

[2023] HKCFI 2472

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 878 of 2019

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 present in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 1 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Second Decision”), which is on the BOR 2 risk. As to the applicant’s claim on the other applicable risks, i.e. the Torture risk, the BOR 3 risk and the Persecution risk, they were rejected by the Director. Upon appeal to the Board, the applicant was late and the Board, by the Board’s First Decision, had refused to extend time for him to file the Notice of Appeal. In effect, they were dismissed. The applicant did not seek to apply for leave to apply for judicial review of the Board’s First decision. The Court shall therefore only deal with his application on the Board’s Second Decision.

2.  The applicant did request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court fixed a hearing and he attended the hearing on 30 January 2023.

The applicant

3.  The applicant is a national of Nigeria. He was arrested by the police in Hong Kong on 9 June 2015 for being an illegal immigrant. On 15 June 2015, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by the OGB Brotherhood (“OGB”), a branch of a Nigeria-based religious movement named Brotherhood of the Cross and Star (“BCS”), because he refused their request to kill a man as part of the rite.

4.  According to the applicant, he was introduced to OGB by his friend in around 2008. It was his belief that joining OGB would help him accumulate more wealth. As a result, he often participated in the party’s gatherings. On a Friday night in mid-March 2008, the applicant was blindfolded in a secret room of a church of OGB and brought onto a vehicle. He was taken to a place surrounded by bushes. There, he was whipped at his back for 36 times and was given unknown animal blood to drink. He was then vertically buried under the ground with his head exposed for two days. No food or drink was provided throughout this ritual. The applicant believed that his business became profitable because of the blessings from OGB. They also knew the location of the applicant’s storage in Kano.

5.  In the second week of March 2010, the applicant was asked by the OGB to kill a male at his choice, if he wished to continue to be wealthy. The applicant immediately refused this request. His refusal was followed by death threats. Since then, he had ceased to go to the OGB gatherings. He later escaped to Lagos and changed his phone numbers. In May 2010, the applicant was informed by his friend that his storage in Kano was burnt into ashes. He believed that the arson was either by the terrorist group Boko Haram or by OGB as a revenge. Out of fear, the applicant decided to flee to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 14 December 2015 by the Director (the “Director’s First Decision”).

The Director’s Decisions

6.  The Director considered the applicant’s claim in relation to the following risks:

(1)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

(3)  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

(4)  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.  By way of the Director’s First Decision, the Director dismissed the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk. In elaboration, the Director found that (i) the past events indicated that the future risk of harm was low [12]-[14]; (ii) state protection would be available to him [15]; and (iii) internal relocation was a viable option [16]-[17].

8.  In the Notice of Further Decision dated 7 September 2017, the Director also found that the applicant’s right to life would not be violated and dismissed his claim on the ground of BOR 2 risk (the “Director’s Second Decision”).

The Board’s Decisions

9.  The applicant first appealed the Director’s First Decision to the Board. He only filed his notice of appeal/petition on 8 March 2016, which was out of time for 9 weeks and 6 days [4]. The Board considered the reasons provided by the applicant [7]-[8]. Having considered the reasons and the relevant circumstances, in its decision dated 5 May 2017, the Board refused to accept the applicant’s explanations of delay and rejected his late filing of notice of appeal/petition against the Director’s First Decision [9]-[12] (the “Board’s First Decision”).

10.  Thereafter, the applicant appealed the Director’s Second Decision to the Board. On 7 January 2019, the Board conducted an oral hearing for his appeal, during which he testified [22]. The Board first noted that the applicant had provided different versions of fear of harm [24]. It addressed the first one that the applicant feared that he would be persecuted by the government bank as he owed a debt. The Board rejected this claim as it did not sit well with the country of origin information (“COI”) that Nigeria had enacted legislations to safeguard the financial and economic activities and that the applicant could negotiate a repayment with the bank under the current legislations in Nigeria [25]-[26].

11.  As to the alleged persecution by Boko Haram, the Board found that he was not personally targeted by Boko Harma and the arson against his storage was a collateral damage of a terrorist attack against the community as a whole [27]. As to the harm by the OGB, the Board found that the applicant had dissociated with OGB and he had experienced no harm or injuries from the OGB after the request from the OGB [28].

12.  In any event, the Board found that state protection and internal relocation were both available to the applicant [29]-[31].

13.  Therefore, by way of its decision dated 1 March 2019, the Board rejected the applicant’s claim on BOR 2 risk and dismissed his appeal (the “Board’s Second Decision”).

Application for leave to apply for judicial review of the Board’s Decision

14.  The applicant has filed Form 86 dated 1 April 2019 for leave to apply for judicial review of the Board’s Decision.

15.  In his affirmation in support of his application, the applicant said that he was given the opportunity “to keep forward my submissions in an oral hearing because of the hearing bundle was served late nor I was invited to submit written submissions…” He further said that the Board had relied “on the source of news which is not officially recognized or it is simply hearsay. They have also relied on some cases which are fairly outdated considering the dramatic changes.” He submitted that the Board had made groundless speculations that it is safe for him to return to his country.

DISCUSSION

16.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he understood the Director’s Decisions and the Board’s Decisions and he did not have much to say. He said that he has a family with a daughter here and he wants more time to sort out his own problem.

18.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …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.”

19.  The Board did not accept his evidence of the facts and found that state protection and alternative internal relocation are available to him. These remedies and alternative option are also applicable to his appeal against the Director’s First Decision though he was out of time to file his Notice of Appeal. There is no valid reason to challenge the Board’s Second Decision.

20.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

21.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

22.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Second Decision. Accordingly, I dismiss his 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