EJIKE EMMANUEL SUNDAY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 774/2017

[2018] HKCFI 1784

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 774 of 2017

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 the Applicant being present/absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Procedural history

1.  The Applicant entered Hong Kong legally on 12 September 2014, from Nigeria and surrendered to the Immigration Department on 13 March 2015, after overstaying from 20 September 2014.  He was released upon recognisance on 13 March 2015.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 24 April 2015.  His NRF claim form was submitted on 11 April 2017.

2.  The Applicant attended a screening interview on 21 April 2017.  The Director of Immigration (“the Director”) dismissed his claim (including that under BOR 2) by Notice of Decision (“the Decision”) on 26 April 2017.  He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 9 May 2017.  The Adjudicator of the TCAB, Mr Ian Wingfield, heard him on 12 September 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2.  The Adjudicator refused his appeal on 29 September 2017.

3.  The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 17 October 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

4.  The Applicant is a Nigerian national.  He was born in Enugu, Nigeria in 1982.  He received 12 years of education.  He is unmarried and has one sister.  His father owned two medical equipment shops, jointly owned with his father’s business partner, Alhagi and the Applicant claims that he used to help his father in these shops.  He is a Christian.

5.  The Applicant’s basis of claim centers around a dispute with Alhagi, regarding ownership of the Applicant’s father’s business, in which Alhagi considered he had a financial stake.  He cites three primary incidents.  Firstly, after verbal threats to stay away from the business from seven men, the Applicant was beaten in 2009 by the same men with wooden sticks and iron bars.  Further threats were issued that if he were to return to the business, he would be killed.  The Applicant’s father reported this to the local police but did not mention any names so as to avoid conflict with Alhagi.  The second incident occurred in mid-2010, when his father was killed in a bomb blast.  It was rumoured that the bombing was conducted by ‘Boko Haram’, a domestic terrorist group.  The Applicant asserts that Alhagi was a sponsor of Boko Haram and was in fact behind the bombing.  As Alhagi had many men working for him, he was afraid that he would be in danger of harm.  Further threats were issued by associates of Alhagi between the second and third incidents.  In mid-2011, a group of unknown men came to the Applicant’s house and hit his mother over the head whilst attempting to retrieve the partnership agreements of the business belonging to his father.  His mother died on the way to hospital.  The Applicant fled and moved between several locations but eventually decided to leave Nigeria for Hong Kong in 2014.  The Applicant asserts that he could not be internally relocated, since Alhagi and his men had already easily located him in Lagos when he moved there. He also argues that it is more dangerous for him to return to Nigeria now, due to the presence of an offshoot group of Boko Haram, named the Fulani Herders, terrorising his village and others.

The non-refoulement claim

6.  Under the Unified Screening Mechanism (“USM”), the Applicant’s claim is to be assessed on all applicable grounds which are:

i.  Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”).  Under torture risk, the Applicant must establish he has substantial grounds for believing he will be subjected to torture if returned to his home state.  Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal.  The standard of proof is a low one.

ii.  Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”).  Under BOR 3, the Applicant must establish that he has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to his home state.  The level of such mental or physical torture etc. must reach a minimum level of severity.

iii.  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”).  Under “persecution risk”, the Applicant must establish that he has a well-founded fear that there is a real chance that he will face persecution based upon race, religion, nationality or membership of a social group or political opinion if he is expelled and returned to his home state.

iv.  Risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”).  Under BOR 2, the Applicant must establish a real risk that he will be arbitrarily deprived of his life, have a death penalty imposed upon him; or be the victim of genocide or otherwise be deprived of his rights under BOR 2.

7.  It is the duty of the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the Applicant had established the factual basis of his claim.  The Director and Adjudicator must then assess the level of harm the Applicant says he fears.  Each ground of claim above has a relevant level of risk.  It is for the Applicant to establish that he is the subject of such risk.  Under the HKBORO, he must show substantial grounds for believing that the harm which he fears is “foreseeable, real, personal and present”.  The question is whether there is a real risk or real chance of the occurrence or recurrence of the harm which he fears.

Decision and further decision of the Director

8.  The Director analysed the Applicant’s claim on all applicable grounds as outlined above.  He considered a wide range of documentary evidence including documentation delineating problems with the standard of policing in Nigeria.  He correctly set out the law, key legal principles and made reference to relevant materials.  The Applicant was given every opportunity to state his case and to supplement the evidence before the Director.  He submitted several documents relating to the activity of the Fulani Herdsmen, but it was noted that the Applicant did not submit any documentation relating to the ownership of the two shops.  In coming to his decision to reject the claim under the various heads, the Director acted reasonably and explained his decision on the merits in a clear and intelligible manner.  The limited severity of the injuries sustained during the first incident contributed to the Director’s conclusion that there was a low future risk of harm, if any.  Furthermore, the lack of documentary evidence which the Applicant possessed in relation to the two shops suggested that he would be unlikely to approach Alhagi to challenge the ownership of the shops.  As such, any future conflict would be unlikely to arise.  In any case, a dispute over a business is a purely private matter and does not fall under the persecution head.  A finding of adequate state protection and internal relocation opportunities further negated the risk of torture, persecution or violation of BOR 2 and BOR 3 rights.

Decision of the Adjudicator

9.  The Adjudicator analysed the Applicant’s claim on all applicable grounds.  He arranged for an oral hearing and treated the appeal as a rehearing.  He correctly set out the law and key legal principles including the burden and standard of proof.  The Adjudicator highlighted substantial inconsistencies in the Applicant’s oral evidence as to his involvement with his father’s shops, compared with his original evidence given in his NRF.  These inconsistencies continued into the Applicant’s account of the first incident, where he submitted in his oral evidence that Mutombi, whom he had also referred to, had not in fact been present.  The lack of serious injury he received, after being beaten with iron bars and sticks, was also inconsistent with the account he gave of the incident.  The Adjudicator found overall that the Applicant was not a reliable witness. In assessing the risk of persecution, torture and violation of BOR 2 and BOR 3, he found that there was not a real and substantial risk of these occurring.  The appeal was subsequently dismissed.

Leave to apply for judicial review

10.  Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status.  This is an application to apply for leave to judicially review the Decisions of the Director of Immigration and the Adjudicator.  The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

11.  There were no grounds of review.  The Applicant asks for a re-hearing of his appeal.  He has not complained of any procedural irregularity, unfairness or unreasonableness but I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

12.  Despite the fact that the Applicant did not submit any grounds of review, I have considered the papers carefully.  I have not found any error of law or procedure.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  Despite the onus being upon the Applicant, the Director and the Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately.  There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

13.  In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.

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