FRANCIS, MICHAEL CHIDIEBERE v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1682/2018

[2019] HKCFI 901

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1682 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 the Applicant in open court;

Leave to apply for judicial review be refused.

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

1.  The applicant is a Nigerian national who arrived in Hong Kong on 12 December 2010 and was permitted to remain as a visitor until 2 January 2011.  He did not depart Hong Kong and overstayed for over five years before surrendering to the Immigration Department in March 2016. He then lodged a non-refoulement protection claim.  That claim was rejected by the Director of Immigration (“the Director”) on 24 April 2017.  He lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which was dismissed on 19 June 2018 after an oral hearing.  On 20 August 2018, the applicant filed a notice of application for leave to apply for judicial review.  He has not requested an oral hearing and I have considered his application on the papers.  

2.  The basis of his claim was that if he were to return to Nigeria, the applicant was at risk from the Boko Haram and other Muslims because of his Christianity.  In addition, his father and family had a land dispute with his paternal uncle.  Even though his uncle has passed away, the applicant was still at risk of harm from his cousins and other family members who supported him.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and claim in detail in their decisions; I only intend to summarise it here.

3.  When the applicant was four years old, his family moved to Kaduna to avoid a family land dispute with his paternal uncle.  The land was legally owned by his father but his uncle had demanded it be assigned to him without consideration.  Those demands were accompanied by threats to kill the applicant’s father and the whole family.  These threats led his parents to move away; the applicant himself had never seen or been to the land in question nor did he know where the property is located.  His uncle has since passed away but the fear is that his successes will still harm the applicant and his family in order to obtain the land he remained in Kaduna until 2010 when he moved to Lagos for about eight months before fly to Hong Kong in December 2010.

4.  Besides the family land dispute, the applicant claimed both his parents were pastors and he was born into the Christian faith. His parents built a church after moving to Kaduna.  However, there were long-term conflicts between them and Muslims and Boko Haram members from a nearby mosque.  This came to head in March 2010 when a group of Muslims with guns and machetes attacked Christian churchgoers outside the church.  He witnessed the attack and hid in his parent’s church but saw his father shot.  He hid in the home of a fellow Christian who told him that the church and the applicant’s family hone had been burnt down during the Great Kaduna Massacre.  The applicant did not report the incident to the police because these types of attacks happened very frequently and he would not receive any protection.  About a month later he moved to Lagos and stayed with a friend who later suggested he travel to Hong Kong to avoid the religious persecution and help him courier goods between Hong Kong and Nigeria.  The applicant made a return trip before overstaying in Hong Kong.

5.  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”).

6.  The adjudicator treated the appeal as a rehearing and conducted an oral hearing.  He correctly set out the law and key legal principles applicable to all four grounds.  He set out in detail the applicant’s evidence and the questions as well as the answers given during the hearing.  He also set out the Country of Origin Information (“COI”) he relied on, in particular in relation to the Boko Haram.

7.  The adjudicator considered the fact that the applicant had never personally been threatened in relation to the land in question which supported the adjudicator’s conclusion that he is of no interest to his uncle or associates.  Any fear that they would harm the applicant as part of a land dispute, he found far-fetched.  This is even more so given the applicant’s evidence that he has no intention of asserting a proprietary interest in the property.

8.  As far as his claim in relation to his Christianity was concerned, the adjudicator considered his claim and evidence carefully before finding that he fabricated his claims to be the child of two Christian pastors who set up a church in which he was actively involved.  The adjudicator set out why he did not find this claim credible in his decision in great detail.  He concluded that the applicant was not nor was he brought up a Christian.  Therefore, the adjudicator did not find him personally at risk from any group targeting Christians in Nigeria if he were to return.

9.  The adjudicator found the applicant was unable to show he was at risk of torture, CIDTP or persecution if refouled to Nigeria.  He had failed to show that returning to his country of origin would expose him to a real risk of a violation of his rights to life so as to constitute a breach of BOR 2.  The adjudicator confirmed the decision of the director.

10.  In the applicant’s affirmation he exhibits some documents including a statement as his “grounds of appeal” which was a document he relied on and submitted for his appeal/petition before the TCAB.  However, he has not set out any grounds to support this application.  I note in his Form 86, his notice of application of leave to apply for judicial review he lists the proposed respondent to be the Director of the Immigration Department but seeks relief in respect of the TCAB decision, he lists the date of his TCAB hearing as the decision in respect of which relief is sought.  He then lists the Immigration Department as the interested party.  I read this notice of application to propose the TCAB as the respondent.

11.  Even though there are no grounds relied upon by the applicant, I did examine and scrutinised the adjudicator’s decision to ascertain whether he made any errors of law and whether he analysed the appeal/petition with a high standard of fairness as is required.  I considered whether the application of the enhanced Wednesbury test was satisfied.

12.  A reading of his decision shows that he gave full consideration to the applicant’s claim and evidence as well as the COI.  He provided full reasons for his decision to dismiss the appeal.  I found no failings on the part of the adjudicator.  I found no errors of law nor any evidence of procedural unfairness.  He did not fail to adhere to a high standard of fairness.  There is no realistic prospect of success and I refuse 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