NNAJI CHARLES ANAYO v. TORTURE CLAIMS APPEAL BOARD

HCAL 798/2024

[2024] HKCFI 3244

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 798 OF 2024

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 the Applicant in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 38-year-old national of Nigeria who last arrived in Hong Kong on 25 March 2010 as a visitor with permission to remain as such up to 15 April 2010 when he did not depart and instead overstayed, and was arrested by police more than 4 years later on 15 September 2014. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to Nigeria he would be harmed or killed by his business partners over their business disputes. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Enugu State, Nigeria. After leaving school he worked in various companies in Lagos, and in 2009 he started his own garments and mobile phones business with 2 friends as dormant partners with capital contribution only while the Applicant was to run the business by himself including travelling to Hong Kong for purchasing goods, during which he would ask his brother to look after the business in his absence.

3.  Initially the business ran smoothly and was successful, but on one occasion in October 2009 while the Applicant was away on a business trip, one of the customers failed to make payments for a large supply of goods sold by the Applicant’s brother to him on credit that the business as a result suffered a huge loss that his 2 partners decided to leave the business and demanded for the return of their capital contribution, to which the Applicant refused as not reasonable.

4.  Thereafter one day in May 2012 while on another business trip to Hong Kong, the Applicant was informed by his neighbour that his 2 business partners together with some men had come to his home looking for him, and when they could not find him, they then beat his brother with sticks and knives that his brother subsequently died from the beating, whereupon the Applicant was afraid to return to Nigeria and therefore overstayed in Hong Kong, and upon his subsequent arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 3 November 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 8 March 2016 and a Notice of Further Decision dated 16 January 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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 decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his former business partners upon his return to Nigeria as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of their killing of the Applicant’s brother other than just hearsay, that in any event it was a private monetary dispute between the Applicant and his former partners only without 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 923,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as the capital Abuja where it would be difficult if not impossible for anyone to locate him.

7.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions, which was dismissed by the Board on 20 April 2017 which also confirmed the Director’s decisions.

8.  Subsequently with leave granted by this Court to the Applicant to apply for judicial review of the Board’s decision, a consent order was made on 7 July 2022 for the Board’s decision to be quashed and that the Applicant’s appeal be remitted to a differently constituted Board for fresh determination, and for which the Applicant attended 2 oral hearings on 4 October 2023 and 3 November 2023 with his lawyer from DLS before the Board during which he gave oral evidence in support of his claim as before as well as new evidence of his fear of harm from the Nigerian authorities for having subsequently joined the separatist group Indigenous People of Biafra (“IPOB”) in Hong Kong and participated in their activities to restore the defunct Republic of Biafra but which was regarded by the Nigerian government as a terrorist group, and with submissions made on his behalf by his lawyer as well as answering questions raised of his new evidence by the Adjudicator for the Board.  

9.  By a Decision dated 26 April 2024 the Board dismissed the Applicant’s appeal upon finding serious and material inconsistencies discrepancies and contradictions in the Applicant’s evidence that it rejected his claim of fear of harm from any former business partners over any business or monetary dispute between them that caused him to overstay in Hong Kong to seek protection as entirely unreliable and incredible, while there is also no evidence at all to corroborate his claimed involvement with the IPOB, and given the contradictory and confused nature of his evidence about IPOB and his lack of knowledge of key issues involving the organization notwithstanding being given a further opportunity to deal with the many issues raised by the Board during his first hearing and the subsequent adjournment for him to obtain further supporting evidence with the assistance of his lawyer but which he still failed to do so at the second hearing that the Board also rejected his claim to have any involvement with IPOB at all, and concluded that the Applicant had failed to establish any risk that he would face any harm in any form or from anyone upon his return to Nigeria that his non-refoulement claim for protection failed on all the applicable grounds.    

10.  On 20 May 2024, 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 or in his supporting affirmation of the same date in which he just asserted that his life is still in danger in his home country but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of 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 Board rejected his claim essentially on its adverse findings on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 34 – 116 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim in not just one but two hearings, 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 to challenge the findings of the Board.

13.  Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm from the former business partners in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nigeria, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

14.  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.

15.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly 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