SUNDAY PETER ATYH alias SHABU YABRE v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2092/2019

[2021] HKCFI 3729

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2092 of 2019

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:

1.  According to Immigration record, he visited Hong Kong on 7/9/2009. He used a passport issued by Guinea Bissau in the name of Shabu Yabre, born on 1/1/1980.[1] He was allowed to stay until 21/9/2009. He was arrested on 8/9/2009 for the offence of trafficking in a dangerous drug. He was eventually convicted and sentenced to imprisonment for 14 years. He raised the non-refoulement claim in this case on 20/12/2018.

2.  He feared that he might be harmed or killed by Henry, Emeka, Mr. Mango and their associates as he could not return the dangerous drug seized by the Hong Kong authorities in the offence.

Background

3.  The applicant was born in Bafata, Guinea Bissau on 25/9/1982.  His family moved back to the home village in Nigeria [2] when he was very young. He was ethnic Igbo. He was a catholic. He had dual citizenship in Nigeria and Guinea Bissau.[3] He was single. He had education for 8 years. He was an apprentice in automotive spare parts business for 8 years. He had never been charged or imprisoned in Nigeria or Guinea Bissau. He had not joined any organization in both countries.

4.  In late 2008, he made friends with 2 males Henry and Emeka in his home village. Two months later, they offered him a job to deliver a luggage to Asia for a reward of US $3,000. It was for Mr. Mango—their boss. They would charge US $1,200 as introduction fee. He accepted the offer as he was in need of money. He however felt the job was dubious.

5.  About late 2008 or early 2009, he departed Nigeria for Thailand with the luggage given by Henry and Emeka. He used a passport issued by Guinea Bissau authorities. He could not recall when he arrived at Thailand. He was allowed to stay for 14 days. There was no problem getting through the Customs.

6.  The associates of Henry and Emeka (“the associates”) picked him up at the airport in Thailand. They took away the luggage. They arranged him to stay in a hotel. He stayed in Thailand for about 11 months. He had to leave and enter Thailand several times in order to extend his visa. During that period, he had travelled to Hong Kong for 3 times. He also travelled to Macau, Laos, Cambodia and Bangladesh. He had no problem using his passport. He did not carry the luggage of Mr. Mango during these trips.

7.  Around September 2009, the associates forced him to swallow some drugs before coming to Hong Kong. That was the first time he knew that the luggage contained drugs. When he refused, they assaulted him causing bruising on his face. He took medicine by himself. It took 2 weeks to recover.

8.  On 7/9/2009, he entered Hong Kong as a visitor. He did not know how to apply for non-refoulement protection at that time. The next day, he was arrested by Hong Kong Customs Officers for trafficking in a dangerous drug. He pleaded guilty to the charge and was sentenced to imprisonment for 14 years. He was released in January 2019 after serving his sentence. He was detained in CIC subsequently.

9.  He called Henry and Emeka in 2010. They did not believe he was arrested. They demanded their drugs back or else they would kill him and his family.

10.  His father told him that there were triads stalking the neighborhood asking about him. They threatened to kill his parents. In 2012, his father told him on the phone that they assaulted both of them causing serious injuries. His mother died of the assault. His brother ran away from home.

11.  His father told him in 2018 that Henry and Emeka were still looking for him. He also contacted his classmate in the home village who confirmed that.

12.  He could not relocate in Nigeria as Henry and Emeka had extensive network. They would be able to trace him. There were also tribal and religion problems making it difficult for relocation in Nigeria. He could not return to Guinea Bissau as he had no relative there.

13.  He believed that Henry, Emeka and Mr. Mango had connections with the Nigerian authorities. The police in both countries were corrupt. He submitted a newspaper report which revealed that a drug lord killed the family of those people who could not return the money in a town close to his home village.

The Decision of the Director

14.  The Director rejected his claim on 11/3/2019.  The Director concluded that the risk of harm was low.  The reasons were:[4]

(a)   The applicant was only assaulted once in a hotel in Thailand when he was forced to swallow some drugs. He treated his swollen face himself and recovered in 2 weeks. There was no intention to harm him seriously. The ill-treatment did not attain a minimum level of severity.

(b)   There was no evidence that those people who harassed his parents were triad members. There was no evidence that they were sent by Henry, Emeka and Mr. Mango. It was pure speculation.

(c)   His father told him that Henry, Emeka and Mr. Mango had kidnapped and killed his younger sister in 2014.[5] His schoolmate told him that Henry, Emeka and Mr. Mango continued to ask about him in the home village.  All these could not be verified. They were pure hearsay.

(d)   He knew very little about the background of Henry, Emeka and Mr. Mango. It was pure speculation that they could locate him anywhere in Nigeria. There was no evidence how they could mobilize resources and manpower to trace him in Nigeria.

(e)   The dispute between him and Mr. Mango’s gang was private in nature. There was no evidence that their conduct was instigated, connived or consented by the government or public official.

(f)    He asserted that Mr. Mango and his gang had connections with the Nigerian authorities. It was based on what he heard from the associates in Thailand that the body guard of Mr. Mango supported the ruling party –All Progressive Party. This was pure speculation without supporting evidence.

(g)   While he was ill-treated by the associates and forced to swallow some drugs shortly before he came to Hong Kong in September 2009, he did not seek protection immediately. He received death threats in 2010 and 2012 while in prison [6]. He did not seek protection during his imprisonment. He only raised his claim near the end of his imprisonment. This was inconsistent with a genuine intention to seek refuge in Hong Kong.

15.  The Director pointed out that some COI revealed that there were ethnic and religious violence in Nigeria.  There were problems of corruption, abuse of human rights, extrajudicial killing and arbitrary detention in the police and security forces. The government was not effective in law enforcement. There were also COI showing that the government had taken positive steps to monitor police conduct and to improve police professionalism. The ICPC [7] was mandated to investigate and prosecute corrupt practices and to review practices of public bodies for prevention of corruption. Laws[8] were passed to prohibit torture and ill-treatment. The PCC had received and resolved complaints.[9] The National Police Force was controlled by an Inspector General. In each state there was a State Commissioner in command. In case of emergency, the governor would assume operational control. Judging from the available COI, the Director concluded that there was reasonable State protection in Nigeria.

16.  In Guinea Bissau, there were problems of corruption and interference of private rights. There was no judicial independence and due process. Drug trafficking offences were rampant. The police were corrupt, inefficient and poorly trained. There were on-going reforms by the government. The UNIOGBIS[10] was mandated to modernize security institutions and to strengthen the rule of law. There were programs to build more police stations and improve the presence of police in the community. The UNODC[11] organized trainings for officers to tackle cross-border organized crimes. The Director found that the government of Guinea Bissau was able to tackle corruption and protect its citizen.

17.  Nigeria was a big country of more than 900,000 km². There was a large population of 170 million people. The law in Nigeria allowed internal movement.  The Abuja and Ogun state were reasonable options. It was difficult for Mr. Mango and others to locate him. It would not be unreasonable for him to relocate within Nigeria.

18.  Guinea Bissau had a population of 1.8 million. Its area was 36,000 km². The law allowed internal relocation.   Cities like Bissau and Bafata were regional capital cities and would be viable for relocation.    

The Decision of TCAB

19.  The adjudicator held a hearing on 6/6/2019.  The applicant confirmed the accuracy of the evidence in the hearing bundle.

20.  The adjudicator pointed out that the applicant had presented a fragmented account. His claim of ignorance or loss of memory about vital details prevented any meaningful clarification of the factual basis. The asserted fear was highly improbable if not fanciful. The non-refoulement claim was not reliable. The main points were as follows:[12]

(a)   The circumstances under which the applicant was recruited was dubious. Henry and Emeka were strangers. They offered a reward of US $3,000. The applicant did not bother to ask why personal delivery was necessary. He did not ask what would be inside the luggage. He did not ask where the luggage would be delivered. All accommodation and daily expenses were paid by Henry and Emeka.

(b)   The applicant was reluctant to provide details of the associates in Thailand. Despite he was in their company for a month, he was unable to recall any name. He even could not recall the name of the hotel at which he stayed.

(c)   The applicant was paid the reward once he arrived in Thailand. He could not explain why he did not return to Nigeria right away. There was a lot of prevarication.

(d)   The applicant told the adjudicator that he had tried to escape from the associates in Thailand. He had not mentioned this earlier to the Director. This undermined his credibility and the assertion that he was forced to traffick dangerous drugs.

(e)   The adjudicator found it unconvincing that the drug syndicate would persist on seeking repayment for the drugs confiscated, especially when the incident occurred a decade ago.

(f)    The applicant asserted that he called Henry to report his arrest. The adjudicator found it unconvincing as the syndicate must have known that he was arrested.

(g)   The applicant had not adduced sufficient evidence that Mr. Mango’s influence could extend outside his home village, let alone internationally. The fear of persecution was not well-founded.

(h)   The applicant had not reported his case to the police in Nigeria or Guinea Bissau. It was his speculation that the police in the two countries would not assist. This subjective perception would not be sufficient indication of insufficient State protection.

(i)  There was no reliable evidence that both government had acquiesced or was unwilling to protect the applicant.

21.  The adjudicator found that the evidence was unreliable. It did not establish that both governments had targeted the applicant. He had not reported to either government. There was reasonable State protection. There was no injury attaining a minimum level of severity. There was no risk of torture defined under s.37U of the Immigration Ordinance. There was no well-founded fear of persecution as defined under the Refugee Convention. The adjudicator rejected the appeal on 14/6/2019.[13]

Judicial Review

22.  The applicant filed the leave application for judicial review on 22/7/2019. In his affirmation, the applicant asserted that the TCAB decision was unfair. His life was in danger.

23.  The applicant wrote to this court in a letter dated 11/5/2020, he further asserted the following points:

(a)   The decisions of the Director and the TCAB were not reasonable. The right to life entitled him protection of the criminal law. It also protected him from extra judicial killings.

(b)   The Director failed to consider State acquiescence. The Director failed to consider his arguments.

(c)   The adjudicator placed too much reliance on the COI without considering his personnel background and experience.

(d)   The adjudicator was unreasonable in asking questions that he was not in a position to offer any response. The adjudicator failed to take into account the connections of political parties and official corruption which existed in Nigeria and Guinea-Bissau.

(e)   He might be punished again in Nigeria for the same offence under the National Drug Law enforcement Agency Act.

24.  In a leave application, this court would mainly consider the TCAB decision. Whether there is any error of law or procedure in the TCAB decision.  Whether it is reasonable.  This court would not interfere with the finding of facts unless it is obviously wrong.

25.  The TCAB has the duty to ascertain the facts. It is not for this court to embark on any fact finding exercise. The applicant has a duty to disclose full material facts in support of his claim. Any failure may affect his credibility. [14]

26.  I have the following comments as to the points raised in the letter dated 11/5/2020:

(a)   The applicant had not reported the threat to the authorities of Nigeria or Guinea Bissau. The Director and the TCAB found that there was reasonable State protection in both countries. Most importantly, the adjudicator rejected the factual basis of the applicant’s claim. The applicant failed to establish there was a real risk of right to life.

(b)   Given that the applicant had not reported the threats to the authorities of either country, the issue of State acquiescence did not arise.

(c)   The adjudicator had analysed the evidence in great detail. She had invited the applicant to comment on the COI. I do not accept that the applicant’s personal circumstances were not sufficiently considered.

(d)   The purpose of holding an oral hearing is to clarify the doubtful points in the evidence. The adjudicator has a duty to ask questions and point out the relevant issues to the applicant. The applicant should try his best to give some explanation. This is a proper procedure to assess credibility and clarify doubts.  There is no unfairness. 

(e)   The double jeopardy issue—further prosecution in Nigeria—was not raised before the TCAB. There was no reason given for this failure. The TCAB could only consider the facts presented to it at the time of the hearing. The TCAB should not be criticised for not considering this issue.

(f)  Even assuming the accuracy of the National Drug Law Enforcement Agency Act as stated in his letter, the applicant, if refouled, might be prosecuted under section 22 after being convicted of a drug offence in a foreign country. The maximum penalty was imprisonment for 5 years. Provided that there would be a fair trial, these further proceedings could not amount to ill-treatment. Besides, it would not infringe Art. 11(6) of the Hong Kong Bill of Rights Ordinance which only apply to the law and penal procedure of Hong Kong. The Hong Kong Bill of Rights does not apply to the jurisdiction in Nigeria. It is therefore not double jeopardy. [15] In any event, there was no evidence that the Nigerian government had any intention to prosecute the applicant under s.22 on refoulement of the applicant. There was no evidence that the applicant would not face a fair trial.

27.  The adjudicator had analyzed the evidence in detail.  She found that the applicant was not credible.  She rejected the factual bases of the applicant’s claim.

28.  In my view, the adjudicator’s conclusion is reasonable. The applicant failed to prove that there was a real risk of any ill-treatment or harm if refouled. There is no error of law and procedure in both decisions.

Conclusion

29.  I refuse leave for judicial review.  This case is not reasonably arguable.  There is no reasonable prospect of success.

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