CHIDOMERE CHRISTIAN OKECHUKWU v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2074/2019

[2024] HKCFI 2954

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2074 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Mr Chidomere Christian Okechukwu (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 3 July 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 31 October 2017 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is a Burkinabe. He was born on 16 June 1986 in Amaimo, Biafra, a region in Nigeria. He moved to live in Ouagadougou, Burkina Faso in 2000. He is holding a Burkinabe national identity card and a Burkinabe passport.

3.  The Applicant received 7 years of education in Biafra before he moved to Burkina. He had 15 years of experience operating his own business in fashion design before he came to Hong Kong in 2016.

The Claim

4.  The Applicant relied on the following facts for his claim. His paternal uncle (“Uncle”) had a dispute with him over seven plots of land located in Amaimo, Biafra (“Land”). The Land was owned by the Applicant’s grandfather. The Applicant’s father, being the first son, inherited the Land. The Applicant became its owner after his father passed away.

5.  Uncle was the second son of the Applicant’s grandfather. Uncle was said to be a well-known spiritual wizard and his neighbours were afraid of him. The Applicant claimed that Uncle had used his spiritual power to attack others including a woman named Antonia and her husband. Both of them died eventually.

6.  The Applicant claimed that Uncle had asked his father to hand over a share of the Land to Uncle. Uncle threatened to do something to the Applicant’s father if he did not comply. His father collapsed on the street in Biafra in early January 2016. The Applicant rushed to see him and he was close to death. His father told him to be careful with Uncle and to leave the country.

7.  After the burial of the Applicant’s father, Uncle asked the Applicant for the Land documents. The Applicant discussed with his friend Michael and decided to store the Land documents at a church in Biafra. He decided to flee to Hong Kong to seek protection. He stayed at a church in Imo state, Biafra before leaving for Hong Kong.

8.  After arriving in Hong Kong, the Applicant learnt that Uncle threatened Michael for helping the Applicant and Michael left Biafra for Ghana in late 2016.

9.  The Applicant claimed that he would be harmed or killed by Uncle if he were returned to Burkina Faso.

Procedural history

10.  The Applicant first arrived in Hong Kong on 15 April 2016 as a visitor and stayed until 29 April 2016. He re-entered Hong Kong on 30 April 2016 and was permitted to remain as a visitor until 7 May 2016. He overstayed and surrendered to the Immigration Department on 23 May 2016. By a written representation of 24 June 2016, the Applicant lodged the Claim.

11.  The Director had considered the Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115;

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR; and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees.

12.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

13.  On 22 July 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed his supporting affidavit on the same day (“Supporting Affidavit”). In the Form 86, the Applicant named USM as the proposed respondent and the Board as the interested party. The Applicant exhibited to the Supporting Affidavit the Board’s Decision and the bundle for hearing before the Board.

14.  USM is the mechanism adopted by the Director in screening non-refoulement claims. It is not a decision maker and cannot be a respondent to a judicial review. It can be seen from the exhibit to the Supporting Affidavit that the Applicant intends to challenge the Board’s Decision in a judicial review. The proposed respondent for such intended judicial review should be the Board. I proceed with this application on the basis that the Board is the proposed respondent.

The DOI Decision

15.  After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that Uncle intended to harm the Applicant.

16.  The Director further noted that the low intensity and low frequency of past ill-treatment from Uncle was indicative of a small future risk of harm upon the Applicant’s return to Burkina Faso.

17.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that the Burkinabe government was able and willing to protect the rights of its citizens and the availability of state protection further lowered or negated the level of the perceived risk.

18.  The Director further found that internal relocation would be viable. If the Applicant moved to Bobo-Dioulasso, Uncle would have great difficulty in locating him. After considering his age and work experience, the Director found that it would not be unduly harsh to expect him to relocate to those areas and lead a normal life.

19.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

20.  After considering the Applicant’s claims including his written evidence, the record of his interview, his notice of appeal and his oral evidence given at the hearing before the Board, the Board formed the view that the Applicant was not a witness of truth.

21.  The Board noted that the Applicant’s case was centered around the alleged magical/spiritual power of Uncle. The Applicant asserted that Uncle killed his father with this power and that he would be located and killed with the same power upon his return. The Applicant claimed that there was no other explanation for his father’s death. The Board found that the Applicant’s claims were neither coherent nor plausible, and were unsupported by any generally known facts. The Board held that the Applicant offered no evidence to support his aforesaid important assertion and his claim was simply fanciful and incredible.

22.  Because the Board held that the Applicant was not at risk from Uncle, who was the only source of risk identified by the Applicant, it found that the Applicant would not face any risk upon his return.

23.  The Board found that the Applicant had failed to establish his case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

24.  In a judicial review, the court does not step into the shoes of the decision makers.

25.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board”.

26.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

27.  The Applicant did not advance any grounds for his intended judicial review in the Form 86. In the Supporting Affidavit, the Applicant only produced as exhibits the Board’s Decision and the hearing bundle before the Board.

28.  By a letter date 4 September 2024, the Applicant produced some news articles on the 2022 military coup in Burkina Faso and fighting between a military group called “Jama’at Nusrat al-Islam wal-Muslimin” and the Burkinabe army in 2023 and 2024. The Applicant attended the court hearing of 26 September 2024 and submitted further news articles dated 2023 and 2024 on persecution against Christians in Burkina Faso as well as crime and killings committed by armed groups or Burkinabe army there. The Applicant said that there were epidemic terrorist activities in Burkina Faso and it would not be safe for him to return there.

29.  The aforesaid news articles had not previously been placed before the Board. They are fresh evidence. As pointed out by the Court of Appeal in Kwok Hay Kwong v Medical Council of Hong Kong [2007] 3 HKLRD 213 at 219 that the conditions in Ladd v Marshall [1954] 1 WLR 1489 on the admission of fresh evidence on appeal were equally applicable to judicial review. The conditions were: (a) that the evidence could not have been obtained with reasonable diligence for use at the hearing; (b) the evidence was such that it would probably have an important influence on the result of the case; and (c) the evidence must be apparently credible.

30.  The aforesaid news articles had not been published as at the date of the hearing before the Board and thus could not have been obtained with reasonable diligence for use at the hearing before the Board. I accept that these news articles are apparently credible. However, the matters reported in the aforesaid news articles had nothing to do with the dispute between the Applicant and Uncle nor the alleged perceived risk to the Applicant from Uncle. The general security situation in Burkina Faso would not elevate any such general risk to impact on the Applicant’s case in the absence of personal factors concerning the Applicant. They would not have an important influence on the result of the case. Thus, one of the requirements of Ladd v Marshall was not satisfied and they would not be admitted as evidence in this intended judicial review. In any event, these news articles do not assist the Applicant.

31.  No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affidavit. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters

32.  Having rigorously examined the Board’s Decision and the DOI Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed very high standards of fairness.

33.  The Board did not regard the Applicant’s claims to fear harm by Uncle credible. The Board found that the Applicant had not established that there were “substantial grounds” which supported the conclusion that he faced a real risk of ill-treatment, torture or persecution as claimed or of his right to life being violated if he returned to his home country.

34.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such finding involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Board’s Decision is without fault. The proposed judicial review has no realistic prospects of success.

Conclusion

35.  In the premise and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply 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