RE OZOEMENAM DESMOND

CACV 204/2020

[2021] HKCA 572

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 204 OF 2020

(ON APPEAL FROM HCAL NO. 219 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 Campbell-Moffat J given on 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/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 1 December 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 3 February 2016 and 21 June 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant last entered Hong Kong on 25 October 2010 using a false Guinean passport.  He was arrested for conspiracy to defraud on 1 August 2011 and it was then discovered that he was in fact a Nigerian national.  He lodged a torture claim on 9 March 2012. 

3.  The applicant’s claim was based on threats from radical Muslims and the Nigerian government.  The details of the applicant’s claim have been summarised by the judge at [4] to [7] of the CALL-1 Form.

4.  By a Notice of Decision dated 3 February 2016 (“the Director’s First Decision”), 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 21 June 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 Torture Claims Appeal Board.  After a hearing on 11 October 2017, the Board dismissed the appeal on 1 December 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [71] of the Board’s Decision, the Board found that the applicant may face persecution from radical Muslims upon his return but the persecution risk was not personal to him.  The Board found at [82] that there was no risk of him being personally persecuted by the Nigerian government for being an Igbo or a Christian.  The Board also accepted that the applicant might face BOR3 risk, BOR 2 risk and torture risk if he were to return to Zaria but the Board found that he could escape those risks by internal relocation.  The Board held at [99] – [101] that the applicant may safely relocate to the city of Lagos.  

The Judge’s decision

8.  The applicant filed a Form 86 on 12 February 2018which contained no ground for seeking relief.

9.  In his affirmation in support of the leave application dated 12 February 2018, the applicant contended that he will be harmed and killed by radical Muslims and the Nigerian government upon his return.  In Exhibit B to that affidavit, the applicant contended that:

(1)  The Board’s Decision was based on “insignificant logics” and the Board failed to consider the information regarding persecution and murder of Christians in Nigeria;

(2)  The Board failed to consider the applicant’s explanation for using the false passport, that is he ran into trouble in Kinshasa of the Democratic Republic of the Congo and wanted to flee to another country without first returning to Nigeria.  The Board erroneously found him to be incredible because of the false passport;

(3)  The Board erred in finding that the applicant may safely relocate to other parts of Nigeria. The applicant contended that he will remain a target no matter where he was relocated to;

(4)  The applicant submitted that the Nigerian government was dominated by Muslims and is not interested in protecting Christians.  According to the applicant, the Nigerian government shares the same agenda as the radical Muslims; and

(5)  The applicant is married to a Hong Kong citizen.

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the director and the board, the judge refused to grant leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [15] of the CALL-1 Form:

“15.  The applicant submitted his grounds of review by means of a statement dated 12 February 2018.  In it, he maintains that the Decision of the Adjudicator was illogical and was without proper reference to COI in respect of the persecution of Christians.  He does not say which COI was omitted, over and above that which he had submitted to the Director and was contained within the papers before the Adjudicator.  As the Adjudicator clearly referenced up to date COI, there is no merit in this complaint.  He also complains that the Adjudicator did not consider the reasons given for his failure to apply for protection as soon as he came to Hong Kong and why he was entering under a false passport.  The Adjudicator went to some lengths to note the applicable principles and that the applicant had entered under a false passport and was not timely in his application but he did not hold this against him.  There is no merit in this claim.  He further complains that the Adjudicator found there to be only a small risk of harm if he returned to Zaria.  That is what the Adjudicator found, but he went on to consider re location in any event as if there was a “real chance” of harm to the applicant.  Once again, he gave the benefit of the doubt to the applicant and there is no merit in this complaint.  Thereafter, he complains that a reference to Charlie Hebdo and to the French Government is not analogous because whilst the French security services work hard to track down terrorists, the Nigerian Government do not.  This was not why a reference to the French incident was made.  The Adjudicator fairly considered the depth of feeling of some Muslims and that incidents such as these do occur.  Thereafter, he suggested that re location to a predominantly Christian community would address such risk, if it exists, especially as the COI suggested such communities were not being persecuted.  This ground too is without merit.  Lastly, the applicant relies upon the ever present Boko Haram.  The Adjudicator dealt with this in detail even though he found no personal link between them and the applicant.  He gave extensive reasons for why the applicant would be able to live peacefully as an Igbo Christian Biafran in Nigeria without threat from Boko Haram any different from any other Nigerian national regardless of race or creed.  This too is without merit.”

Grounds for appeal

11.  In the Notice of Appeal dated 18 June 2020 the applicant contended that:

“I appeal against the order by the [judge]…

Despite my outcry regarding the insignificant logics and lack of profound investigation on my claims, things still remain the same

[two Internet articles]

In her conclusion, [the judge]…stated, I quote :- (I have considered the papers and grounds carefully…I have not found any error of law or procedure on the part of the adjudication.)

The fact remains that it’s only those who live in Muslim populated and dominated country can understand very clearly the danger of being accused of desecrating the holy Koran, it’s one of the most dangerous situation to face in life.”

12.  In his written submissions dated 5 August 2020, the applicant expanded on the grounds advanced in the notice of appeal.  He also referred to a number of internet articles in his submissions.

13.  By a letter dated 18 June 2020, the applicant consented to the appeal being disposed of on paper without an oral hearing.

Discussion

14.  The applicant referred to a number of Internet articles in his notice of appeal and written submissions.  The applicant has not obtained leave to adduce new evidence for those articles which were never filed in the court below and we would therefore not give any weight to them.

15.  The applicant claimed that there was a lack of investigation into the danger he will face upon his return.  He also claimed that there was a lack of understanding of the serious danger he faced in relation to the “allegation of desecration of holy Koran”.

16.  The Board has dealt with the incident related to “a torn Quran [found] in front of the shop” of the applicant’s father at [37] of the Board’s Decision.  The Board had also referred to a number of articles related to the alleged danger faced by the applicant in [70] – [77] of the Board’s Decision. 

17.  Having considered all the admissible evidence before us, we do not accept that the applicant can substantiate any public error in the findings by the Board that there was no personal persecution risk from the Nigerian government and that internal relocation was viable.

18.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.