IZEBHOR FESTUS OSAKWE v. TORTURE CLAIMS APPEAL BOARD

HCAL 682/2018

[2021] HKCFI 834

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 682 of 2018

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 24-year-old national of Nigeria who arrived in Hong Kong on 7 September 2017 on transit to Fiji, but when his ticket to Fiji was found to be invalid and was refused entry into Hong Kong by the Immigration Department, he raised a non-refoulement claim on the basis that if he returned to Nigeria he would be harmed or killed by the Fulani herdsmen for refusing to join them and/or the Islamic militant group Boko Haram due to his Christianity religion. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born into a Christian family and raised in Esan, Nigeria. He did not receive any formal education and worked as a hair stylist in his home district where he lived with his parents.

3.  In 2017 the Fulani herdsmen, a nomadic people who raised livestock and had from time to time come into violent conflicts with the local farmers over grazing issues, started to come to the Applicant’s home village to recruit the villagers to join them, including the parents of the Applicant and whom the Fulani herdsmen had threatened and beaten for refusing to join them.

4.  One night in August 2017, some Fulani herdsmen came to the Applicant’s home to attack his parents, and then shot both of them dead, but the Applicant managed to flee from the scene to hide in the bush, and in the following morning he went to seek help from a friend when his friend’s father who worked as a travel agent advised him to leave Nigeria for Fiji as he also feared the Islamic militant group Boko Haram due to his Christian religion, and so his friend’s father helped him to make his travel arrangements.    

5.  On 6 September 2017 the Applicant departed Nigeria for Fiji via Hong Kong in transit, and when his ticket for Fiji was found to be invalid, and when he was refused entry into Hong Kong, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 4 October 2017 through his legal representation from the Duty Lawyer Service (“DLS”) in which he stated inter alia that his native language is Esan but can also speak and write in English, but refused to attend any screening interview before an immigration officer or to answer the list of questions sought by the Immigration Department in English without the assistance of an Esan interpreter but which the Immigration Department was unable to find any available in Hong Kong.

6.  By a Notice of Decision dated 22 November 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”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the Fulani herdsmen or the Boko Haram upon his return to Nigeria as low due to the absence or low intensity and frequency of past ill-treatment from them, that there is no evidence of any threats directed against him from the Boko Haram, that in the absence of 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 190 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 young man with working experience to move to other part of Nigeria away from his home district in large cities such as Lagos where it would be difficult if not impossible for those Fulani herdsmen or the Boko Haram to locate him.

8.  On 28 November 2017 the Applicant lodged an appeal through his lawyer from DLS to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and also requested for an Esan interpreter, for which the Board held a discussion hearing on 16 January 2018 attended by the Applicant and his lawyer from DLS, and upon hearing submissions from them the Board found that the Applicant was capable of understanding and answering questions in simple English, and in view of the various difficulties of getting an Esan interpreter in the circumstances, it decided that the hearing of the Applicant’s appeal with legal representation be conducted in English.     

9.  Accordingly, the Applicant attended the oral hearing of his appeal on 27 February 2018 before the Board with his lawyer during which he gave evidence and answered questions put to him by the Adjudicator for the Board in English without any Esan interpreter, and with submissions made on his behalf by his lawyer. On 8 March 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board found the Applicant’s claim of threats from the Fulani herdsmen or the Boko Haram characterized by hyperbole and exaggerations and was incredible, that there is no reliable evidence that his parents had been murdered by them or of any threats from Boko Haram, or any evidence of any recruitment attempts by the Fulani herdsmen in Nigeria according to reliable COI that any violence resorted to by them were related to competing interests over land for their livestock, that Boko Haram primarily operated in the north eastern states of Nigeria which are long way from the Applicant’s home district and that any suggestion that they would come to operate elsewhere is both irrational and implausible and unsupported by evidence that it rejected the Applicant’s claim of threats from either the Fulani herdsmen or the Boko Haram, and that in any event with internal relocation alternative available for the Applicant to move safely to the states in the South West part of Nigeria without any risk of being located by anyone that his claim for non-refoulement failed on all applicable grounds.  

11.  On 19 April 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affidavit of the same date he put forward the following grounds for his intended challenge:

(1)  that he was not educated and with difficulties to express himself in English but he was not provided with any proper interpreter in his appeal hearing before the Board which was procedurally unfair and unreasonable;

(2)  that in the absence of evidence to prove his case the Board was wrong to infer that the Applicant has no case; and

(3)  that the Board made its decision based on assumption.  

12.  For the Applicant’s complaint in Ground (1) of not being provided with an Esan interpreter for his appeal hearing, as noted above the Board did properly conduct a separate hearing for that issue, and as pointed out in that decision, a copy of which was attached to the Board’s later decision under this application, the Applicant did indicate in his NCF completed with the assistance of legal representation from DLS that he speaks and writes English which is the official language of Nigeria and which is the language that he used in his present application before me including his supporting affirmation which he was able to swear to in English without interpreter, and with the stated difficulties in getting an Esan interpreter which is none in Hong Kong, and in the absence of any particulars or specifics from the Applicant even up to now in his present application to demonstrate that the basis of his claim has indeed been wrongly understood by the Board or the Adjudicator, I find this complaint of his simply speculative and without basis, and that it is not reasonably arguable for his intended challenge.      

13.  As for his remaining Ground (2) and (3), they are just broad and vague assertions of the Applicant 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 the decision, or in what way was the Board wrong or on what assumption did it make its decision. None of which did the Applicant provide any details or elaborations. As such and in the absence of any error of law or facts in the decision being clearly and properly identified by the Applicant, I do not find either of them reasonably arguable for his intended application.

14.  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.

15.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 32 – 76 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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 finding of the Board.  

16.  Furthermore, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nigeria to avoid any risk of harm from either the Fulani herdsmen or the 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.     

17.  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.

18.  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