RE EZEDIANYINMA PATRICK OBINNA

CACV 195/2020

[2021] HKCA 438

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 195 OF 2020

(ON APPEAL FROM HCAL NO. 297 OF 2018)

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J U D G M E N T

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The Court:

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan dated 9 June 2020 refusing leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”)/adjudicator of the Non-Refoulement Claims Petition Office dated 24 November 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 10 May 2016 and 13 July 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Nigeria.  He entered Hong Kong on 5 July 2012 as a visitor and was permitted to remain until 2 August 2012.  He overstayed and was arrested by the police on 11 December 2012.  He lodged a non-refoulement claim on 17 March 2014. 

3.  The applicant’s claim was based on threats from anti-Christian organizations in Nigeria.  The details of the applicant’s claim have been summarised by the judge at [2] to [6] of the CALL-1 Form.

4.  By a Notice of Decision dated 10 May 2016 (“the Director’s First Decision”), the Director considered that the applicant has not adduced evidence to show that he was a particular target of the militant groups or Boko Haram ([18] of the decision).  The Director also considered that the applicant, being an able-bodied adult of 35 years old with experience in working at business field, may relocate to Oyo or Lagos in southern Nigeria.  The Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 13 July 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.  The applicant appealed to the Board.  After a hearing on 21 September 2017, the Board dismissed the appeal on 24 November 2017 (“the Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [50] – [56] of the Board’s Decision, the Board accepted that if the applicant was a lay Christian preacher, this might mean that he was an individual targeted by the militant groups in Nigeria.  The Board considered the evidence offered by the applicant and found that it “did not support any of the applicant’s claims that [he] was a lay preacher, or that he had greater involvement in church activities in Nigeria.  Although this does not completely rule out the possibility that the applicant was a lay preacher and/or that he was heavily involved in church activities in Nigeria, it fails to lend support to the applicant’s claims”.

8.  The Board found that even if it accepted the applicant’s claim that he was a lay preacher, the applicant may safely relocate to the southern part of Nigeria which is “dominated” by Christians.  The Board accepted that a program within the Nigeria Army (Python Dance initiative) might make it dangerous for a Christian to reside in southern Nigeria but the Board noted that this program had already ended.

The judge’s decision

9.  The applicant filed a Form 86 on 26 February 2018 which contained no ground for seeking relief.

10.  In his affirmation in support of the leave application dated 26 February 2018, the applicant claimed that there are many religious crises in Nigeria which are not stopped by the government.  He claimed that it would not be safe for him to return.

11.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

12.  The applicant was late in bringing the leave application by 2 days.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge extended time for applying for leave for judicial review but refused to grant leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [14] to [19] of the CALL-1 Form:

“15. 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 an 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.

16. In the Applicant’s case, the sole basis of his claim and on his own case is that he feared the risk of being harmed by Boko Haram as a Christian should he return to Nigeria, but in the absence of any reliable evidence that he has somehow been specifically targeted by that terrorist group, and as the Court of Appeal has held, the mere existence of a consistent pattern of gross, flagrant or mass violation of human rights or, as in the present case, of random terrorist attacks in the home country per se does not constitute a sufficient ground for determining that a particular person will be in danger of being subjected to such risk upon his return: see Re RS CACV 206/2012, 20 August 2013, para 59; and Re Fitri Ambarwati & anor [2018] HKCA 461, CACV 110/2018. On this basis the Board was in my view entitled to reject the Applicant’s claim, and in the absence of any error of law or procedural unfairness being shown by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

17. Furthermore, the fact is that it has been established by both the Director and the Board in their decisions that the risk of harm in the Applicant’s claim from Boko Haram is confined mainly to the northeast region of Nigeria and that it is not unreasonable or unsafe for him to relocate to the southern part of Nigeria such as Oyo or Lagos away from such risk of attacks by Boko Haram, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

18. 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.

19. 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.”

Grounds for appeal

13.  In the Notice of Appeal dated 16 June 2020 the applicant stated that he did not agree with the decision by the judge and that he wishes to obtain a fair judgment.

14.  In the Supplemental Grounds of Appeal dated 7 August 2020, the applicant contended that:

(1)  the Country of Origin Information (COI) considered by the Director and the Board was misleading.  The information projected by Nigerian Muslim journalist is inaccurate.  The Nigerian government does not allow Christian journalists to participate in active media coverage;

(2)  the Nigerian government is corrupt and sponsors terrorist groups.  There is no freedom of speech in Nigeria; and

(3)  both the Director and the Board did not give sufficient weight to his argument before reaching decisions.

15.  The applicant agreed by a letter of 16 June 2020 that the appeal could be heard by two judges.

16.  The applicant failed to comply with the direction made by this court on 22 August 2020 requiring him to lodge skeleton submissions 28 days before the hearing of the appeal, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.  The hearing date on 24 November 2020 was therefore vacated and the applicant was debarred from lodging any written submissions.  We will deal with the appeal on paper on the basis of the materials already filed with the court.

Discussion

17.  The grounds of appeal advanced in the Notice of Appeal and the Supplemental Grounds of Appeal do not identify any error on the part of the judge and they are therefore not viable grounds of appeal.  Further, those grounds lacked particulars and are therefore bound to fail.  In any event, having read the Board’s decision and the judge’s reasons in the CALL-1 Form, we fail to see any error in the part of the judge.

18.  We accordingly dismiss the appeal.