YEREMAGORE BABA MAHAMADOU LAOUEL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL655/2017

[2018] HKCFI 1475

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 655 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 in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.  The applicant is a Nigerian national who last entered Hong Kong on 20 December 2010 and was permitted to remain until 3 January 2011 as a visitor.  He overstayed and surrendered to the Immigration Department on 18 January 2011 and then lodged a torture claim.  His claim was then assessed on all applicable grounds including torture, BOR 2, BOR 3 and persecution risk. His claim was rejected by the Director of Immigration (“the Director”) on 14 July 2015 and subsequently the BOR 2 risk claim on 19 January 2017.

2.  Before the BOR 2 risk claim had been determined the applicant had lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which had given the applicant an appeal hearing date of 14 November 2016.  The applicant was absent on that date so the appeal was decided on the evidence and material available.  After the BOR 2 risk claim determination of 19 January 2017 the TCAB gave the applicant another appeal hearing date of 19 June 2017 to hear the appeal of that determination and he appeared.  The date of the TCAB’s determination was 23 June 2017.

3.  The applicant then filed a notice of application for leave to apply for judicial review on 21 September 2017 and requested an oral hearing.  This court sent the applicant a notice of hearing on 7 December 2017 by registered post and ordinary post to the address supplied by the applicant in his application.  Both letters were returned to the judiciary with the remark “no such address”.  The judiciary made enquiries with the Immigration Department who supplied the judiciary with an up-to-date address and mobile phone number of the applicant as reported to their Department.  The judiciary then sent the applicant a second notice of hearing on 11 January 2018 to that second address but that letter was returned unclaimed.  The applicant did not appear on the hearing date of 22 February 2018.  The mobile phone numbers supplied by the applicant to the Immigration Department and judiciary were called three times that morning but not answered.  I proceeded to consider the applicant’s application on the papers.

4.  The basis of the applicant’s claim was that if he were to return to Niger he would be harmed or even killed by former members of the Nigerian Movement for Justice (“NMJ”) and high-ranking members of the current Nigerian government because he could expose the fraudulent, dishonest and real relationship between NMJ and the Government.  NMJ were not actually intent on fighting corruption in the government but in fact funded by the government to ensure there is instability in the country and ensure there is no election forthcoming.  The applicant had joined the NMJ mistakenly believing it was for the good of the country and had discovered the truth; now there were men who wanted to kill him to silence him.  He had fled Niger to save his life.  Both the Director and the adjudicator of the TCAB have set out the applicant’s evidence and case in detail in their decisions therefore, I only need to summarise it here.

5.  The applicant was born in 1989 and was educated for 13 years including six months of education in Wuhan University, China.  NMJ was established in 2005 to fight corruption and he joined in February 2007 as a member.  He was responsible for the recruitment of members, earning money by digging for gemstones and selling them in China which he did once.  He was promoted to lieutenant which led him to participate in some attacks against the government.  One day in the end of 2009 he was delivering some documents to a military camp of the NMJ when he witnessed some military members of the Nigerian government giving money and weapons to the chief of the NMJ.  He then realised that the NMJ was just a scam, a tool of the Nigerian president to remain in power and keep the country unstable.

6.  He was warned to remain silent and threatened.  However, two days later, some men came to his school looking for him and he knew one of them was the right-hand man of the chief of the NMJ from his description.  The applicant was warned it was dangerous to remain there so he left for the capital of Niger and hid in a hotel.  He was told by a trusted member of the NMJ that the NMJ were looking for him.  That member told him to leave the country as soon as possible for his own safety and it was that member’s father who helped him escape.  By December 2009 the applicant arrived in China and started to study languages in Wuhan University.  He did not even tell his parents where he was so they would not be involved.

7.  After the applicant left Niger there was a peace agreement signed between the government and the NMJ.  The NMJ was dissolved and NMJ members were given government posts but the applicant could not name them.  In February 2010 the Nigerian president was forced to step down in a coup.  In July 2010 the internal affairs Minister was arrested and he was one of the main government officials who wanted the applicant dead.  The applicant felt it was safe to return home.  The applicant returned home on 5 July 2010 from Hong Kong via Togo.  He then disclosed to his family that he had been in China studying without disclosing to them why he had gone to China.  Two weeks after he returned home he contacted the member of NMJ he trusted previously. He told the applicant that ex-members of NMJ still gathered.

8.  That telephone conversation was overheard by the right-hand man of the ex-chief of the NMJ which set off a chain of events.  The father of the trusted member was executed by the ex-chief when he found out it was him that helped the applicant to run away at the end of 2009.  That trusted member immediately called the applicant who told him to come and join him in the capital immediately.  Both went into hiding in a hotel; the applicant had his passport but the trusted member did not.  They had to try and obtain a passport for him before they could leave the country.

9.  Three to four days later they were ambushed by some unknown men and abducted.  They were tied up, gagged and bound; they were held at gunpoint.  The applicant and the NMJ member were beaten with batons.  That night the trusted member was taken away and the applicant heard gunshot; he assumed he was shot dead.  The next day the applicant was questioned by two government officials and asked if he had leaked any information which he denied.  They beat him before leaving him alone to be guarded by one person.  Despite his hands still being tied up, the applicant jumped on the guard and managed to take his gun and kill him.  He got out of the room, got into a jeep parked outside the house which still had the keys in the ignition and drove away but not before someone came out of some bushes and shot him in the shoulder; the bullet passed through his shoulder.  The applicant drove for 35 minutes without being followed.

10.  The applicant then wrapped his wound to stem the bleeding, abandoned the jeep and took a bus across the border to Togo.  He hid in the hotel for a month trying to get to North Africa and confided in a fellow Nigerian man who then betrayed him.  One day two ex-NMJ members burst into his hotel room and beat him, stabbed him in the stomach and then shot him in the stomach.  The applicant lost consciousness and when he woke up he was alone in the hotel room.  He bandaged his stomach and used alcohol to disinfect his bullet wound.  He did not seek any medical treatment nor call the police.  He took some painkillers and went to a travel agency to buy an air ticket to leave Togo.  The applicant flew to Ghana on 8 September 2010, went to a pharmacy and bought some medication and then stayed in a hotel before leaving for Hong Kong on 19 December 2010 from Toga.  He took out the bullet from his abdomen himself by using alcohol and painkillers.

11.  The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

(a)  risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c)  risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d)  risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

Grounds (a) (b) and (c)

12.  The adjudicator arranged an oral hearing for the applicant’s appeal/petition of the Director’s rejection of his torture risk claim, his BOR 3 risk claim and his persecution risk claim but the applicant was absent and the applicant “did not provide a written explanation for his failure to attend the oral hearing, after due notice to his last known address, (so) the appeal was decided on the evidence and material available.” see para 8 of the TCAB decision.

13.  The adjudicator correctly set out the law and key legal principles applicable to those three grounds.  She set out the applicant’s claim and evidence in full in her decision.  She highlighted the discrepancy that he claimed in his non-refoulement claim form that he was educated at a University in Niger yet in his screening interview on 24 June 2015 he said he had not yet finished his high school education.  She highlighted the fact he was absent at the appeal hearing which meant that she was unable to clarify any discrepancies or ask any questions.  She considered his evidence, description of his escapes whilst shot and stabbed far-fetched.  She did not find his evidence credible.

Ground (d)

14.  The Director rejected the applicant’s BOR 2 risk claim after the appointed appeal hearing date for grounds (a) (b) and (c) so the adjudicator set an appeal date to deal with that determination and treated it as a rehearing.  She said that “his evidence on BOR 2 risk was basically a reiteration of his grounds of claim.”  See para 12 of the TCAB decision. She very fairly went on to consider a rehearing of all the applicable grounds instead of only his BOR 2 risk.

15.  The adjudicator did not find the applicant credible but when she considered the torture risk claim she said that even if he had been credible he was not able to establish within the definition of torture under section 37U(1) of the Immigration Ordinance that severe pain or suffering had been inflicted on him for any of the purposes set out under that section.  She found no evidence of any involvement of any public official or acting in an official capacity.  State protection could have been available.  He never sought any protection or made any report.  He had been able to exit from Niger, using his own passport without any hindrance.  The State had no interest in him.  There was evidence that the NMJ was now a spent force. She found no risk of torture if he returned home.

16.  She considered up-to-date, relevant and objective Country of Origin information and found that if there was any risk there was State protection available and internal relocation was a viable option without undue hardship for the applicant.

17.  A risk under BOR 2 was not raised by the applicant; he was not at risk of or the equivalent risk of capital punishment if he returned to Niger.  He had failed to invoke the protection of BOR 2.

18.  As far as the BOR 3 risk was concerned, the adjudicator considered whether there were substantial grounds to show a real risk of torture if refouled.  There must be a genuine and substantial risk of being subjected to such ill-treatment.  Given his lack of credibility, the adjudicator found he was unsuccessful in this claim.

19.  The same reason as above, his lack of credibility, the adjudicator found he was unsuccessful in showing he was at risk of persecution for the purpose of a non-refoulement protection claim.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

20.  I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application.  I find the decision of the adjudicator to be without fault.  She analysed material, claims and evidence with care.  The applicant’s grounds and complaints are not made out.  I find no substance in the grounds of this application.

21.  The applicant has submitted new evidence with his supporting affirmation that was not before either the Director nor the adjudicator of the TCAB.  New evidence that I will not be taking into account.  He has submitted a medical report that was requested by the Justice Centre and dated 20 September 2017 long after the determinations of the Director and the adjudicator.  This report was not part of their decision-making process.  I note the Director had acknowledged the applicant had scars.

22.  The applicant’s supporting affirmation is misleading; he states that he was compelled to give his testimony and attend interviews and hearings in English.  He indicates that he has been prejudiced and the fact he has had no interpreter was unfair.  I note at Exhibit 5, his non-refoulement claim form at question 71, the applicant specifically indicated that he did not require an interpreter when attending interviews.  Exhibit 4 is the screening interview of the applicant and on page 1 at question 1 the applicant is asked if he understands the English spoken by the Immigration officer; he replied yes.  It also clearly says on page 1 that no interpreter is required as per the applicant’s choice.

23.  The adjudicator is accused of misunderstanding the applicant due to a language barrier and therefore unfairly calling into question his credibility.  He says because his interviews were in English this meant he was unable to receive meaningful representation from his duty lawyer nor was he able to understand the Immigration officer or the adjudicator.  There are no particulars to support this ground.  Having read the transcript of the screening interview I have no doubt he understood the English spoken by the immigration officer.  The adjudicator doubted the applicant’s credibility because his evidence was far-fetched, based on bare assertions and not tested; it was not because she did not understand his English.  There is no merit in this ground.

24.  The applicant accuses the adjudicator of refusing his request of an extension of time and it would appear he says he requested an interpreter.  He accuses the adjudicator of not allowing him to obtain or submit a medical report.  None of these requests appear in the adjudicator’s determination.  I am mindful that the applicant did not appear and did not provide a written explanation for his failure to appear at the appeal hearing for the appeal/petition for three of the applicable grounds.  The adjudicator said when he did appear at the hearing on the BOR 2 risk claim his evidence was basically a reiteration of his grounds of his claim.  I find no substance in the grounds of this application without anything further.

25.  I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  In my judgement, the applicant’s claim is not reasonably arguable and there is no realistic prospect of success.  The application for leave to apply for judicial review is refused.

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