ADUMEKWE ROWLAND EJIKE v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 924/2017

[2018] HKCFI 1970

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 924 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 absent;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 43-year-old national of Nigeria who arrived in Hong Kong on 5 May 2007 with permission to remain as a visitor up to 21 May 2007 when he did not depart and instead overstayed until he was arrested by police on 17 October 2009.  After being referred to the Immigration Department for investigation, he lodged a torture claim which was rejected on 31 July 2013 and which he did not appeal, but with legal representation from the Duty Lawyer Service he later lodged a non-refoulement claim on the basis that if he returned to Nigeria he would be harmed or killed by the Nigerian government over a land dispute.  He has been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Agbor, Nigeria where his father owned a piece of land bought many years ago.  In 2006 when the federal government discovered oil in the Agbor area and ordered all the inhabitants to relocate away from area, but when some of the inhabitants including the applicant’s family were not satisfied with the relocation arrangements made for them, they refused to co-operate and instead put up resistances against the government which led to violent conflicts after the government had sent in soldiers to try to put down the resistance and to force the inhabitants to move away.

3.  One day in February 2007 another violent confrontation broke out in the area when soldiers started shooting at people and their houses including that of the applicant’s family, and when the applicant was running away from the scene he was hit and knocked down by a passing motorcycle and was admitted to hospital for treatments to head and legs injuries.

4.  Two days later the applicant was discharged from the hospital by his family and was brought to a neighboring village in Ideato Unrualla Imo State where he and his family stayed in his uncle’s place.  A few days later his family moved on to the Abia State while the applicant remained in Ideato Unrualla Imo State recuperating from his injuries before moving to Onitsha City to stay with his cousin.

5.  Whilst in Onitsha City the applicant was told by his mother that as the family could no longer afford for him to continue with his education and that he should instead start receiving job training, but as the applicant was not interested in training and as he was fearful of further harm from the government after his brother had died from the stress caused by the incidents and his father had suffered from food poisoning under mysterious circumstances, he wanted to go abroad and decided to come to Hong Kong on 5 May 2007, and after his torture claim had been rejected by the Immigration Department, he lodged a non-refoulement claim by completing a Supplementary Claim Form on 12 April 2017 with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 16 May 2017 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of absolute and non-derogable rights under the Hong Kong Bill of Rights (“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”).

7.  In his decision the Director found the absence of any ill-treatment from the Nigerian government in the past throughout his asserted incidents including his being knocked by the motorcycle which was considered as an accident indicative a small future risk of harm upon his return to Nigeria, that he would not be a target of any dispute over his father’s land in which he does not have any legal title or interest and that there is no evidence that any dispute is still ongoing after all these years, 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 186 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 to move to other areas away from his home district such as Lagos or Abuja without any risk of his perceived fear.

8.  On 29 May 2017 the applicant filed his Notice of Appeal/Petition to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 28 September 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 31 October 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.  In its decision the Board rejected the applicant’s claims in relation to the death of his brother and the mysterious poisoning of his family arising from the land dispute with the Nigerian government as well as his additional claim of threats from the terrorist group Boko Haram to his family as inconsistent, problematic and unpersuasive, that there is no evidence that he has ever been under any real or substantial risk of harm personally in Nigeria, and concluded that he has failed to establish his claim under any applicable grounds.     

10.  On 21 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in it he put forward the following grounds for his intended challenge:

(1)  that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the applicant’s case of being tortured by the police in collusion with the state law enforcement agencies and would be rendered liable to the applicant by cause of the state and public officials in failing to provide reasonable protection for its citizens; 

(2)  that the Director failed to rely on the relevant COI which supported the applicant’s case that police in Nigeria would not protect its citizens;

(3)  that the Director only relied on those COI in his favour against the applicant and was therefore being unfair in the consideration of his claim;

(4)  that the Director failed to rely on relevant COI to show that corruption and incompetency in the Nigerian administration is still a very serious problem;

(5)  that the Director failed to apply high standards of fairness in the consideration of his claim; and

(6)  that the adjudicator failed to make sufficient enquiries into the evidence before reaching the decision and without giving sufficient opportunity to the applicant to provide relevant evidence in support of his claim when he was being detained in custody with limited means to do so.  

11.  These are however all just broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in their decisions, or what relevancy is state acquiescence to police torture when there is no evidence whatsoever of him ever being tortured by police at any time in Nigeria, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

12.  The fact is that the applicant’s claim of threats from the Nigerian government over his family’s land has been rejected on facts and evidence by both the Director and the Board where the evaluation of risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and that in the absence of any legal error being identified by an applicant, the court will not usurp their roles as primary decision makers: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; and Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400.   

13.  In the premises and having proceeded to consider 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.

14.  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.

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