IRO DANIEL IHEANACHO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1957/2019

[2024] HKCFI 2761

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1957 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 the Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Mr Iro Daniel Iheanacho (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 12 June 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 9 May 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  As set out in the DOI Decision and the Board’s Decision, the Applicant is a Nigerian.  He was born on 3 April 1977 in Aba, Abia State, Nigeria.  He received 9 years of education and had 9 years of work experience.  He had experience working in the garment business.  He made several visits to Hong Kong since 2008 for business trips.

The Claim

3.  The Applicant relied on the following facts for his claim.  He claimed that the Nigerian government would harm him upon his return to Nigeria because he joined the group or movement known as Indigenous People of Biafra (“IPOB”) in around 2015.  He was promoted to be the Public Relation Officer in Umu Oru (2) of IPOB wing in Aba, Abia State.  He was further promoted to became Acting Deputy Coordinator and then Deputy Coordinator.

4.  In around late 2015, the Applicant participated in a protest with 10 to 30 IPOB members.  He and about 10 to 16 IPOB members were arrested and held at a police station in Aba, Abia state, where he was tortured for 5 days.  The police beat him for 5 to 10 minutes at night time and forced him to drink his urine.  He was blind-folded for 6 hours every day.  The Applicant was not given any food during this period.  The coordinator of IPOB tried to obtain his release but the authorities declined.  The police eventually released the Applicant and warned him that if he got arrested the next time, he would be killed.  The Applicant did not go to a hospital after his release because his injuries were not serious (“1^st Incident”).

5.  On around 9 February 2016, the Applicant participated in another protest at the National High School on Port Harcourt Road, Aba with other IPOB members.  The Nigerian army and police force used violence to stop the protest and about 30 IPOB members were seriously injured.  The Applicant feared that about 6 IPOB members might have been killed.  The authorities arrested about 45 IPOB members. 

6.  The Applicant was injured during the protest when an army officer hit his shoulder with a gun-head, which fractured his shoulder.  The Applicant managed to escape with the help of fellow IPOB members amidst the chaos (“2^nd Incident”).

7.  The Applicant claimed that the threat directed towards IPOB members by the Nigerian government became even greater after the IPOB leader (Nnamdi Kanu) was released on around 28 April 2017.  The Applicant went into hiding in different locations.  First, he hid at Ariaria, Aba, Abia state peacefully for two weeks.  Second, by mid-August 2017, he hid in his own home in Aba, Abia State for about 3 weeks.  He did not go out at all and relied on the support by his friends during this period.  Finally, he hid in Yaba, Lagos for one night before coming to Hong Kong to seek protection in September 2017. 

8.  The Applicant claimed that the violence towards IPOB members in his home area had worsened since his coming to Hong Kong and his life would be in danger if he were to return to Nigeria.

Procedural history

9.  The Applicant last arrived in Hong Kong on 7 September 2017 as a visitor and was permitted to remain until 21 September 2017.  He overstayed in Hong Kong and was arrested by the police on 26 September 2017.  He was subsequently referred to the Immigration Department for further investigation.

10.  By a written signification of 29 September 2017, 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 (“Ordinance”) (“torture risk”);

(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”) (“BOR 2 risk”);

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

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 11 July 2019, the Applicant filed the Form 86 herein (the “Form 86”) seeking leave for judicial review of the Board’s Decision.  The Applicant filed his supporting affidavit on the same day (the “Supporting Affidavit”).  The Applicant named the Director as the proposed respondent.

The DOI Decision

14.  After considering all the relevant circumstances, the Director assessed that the level of risk of harm to the Applicant from the Nigerian government upon his return to Nigeria was low. 

15.  After the 1^st Incident, the Applicant had never been arrested or detained by the Nigerian authorities again and was able to run his business as usual until he departed Nigeria in 2017.  Apart from the Applicant’s bare assertion, he failed to adduce concrete information about how he was personally targeted by the Nigerian government.

16.  The Director found that the Applicant gave inconsistent and even contradictory information related to the 2^nd Incident and that his claimed risk of being harmed by the Nigerian government was vague, speculative and baseless.

17.  The Director further found that even if the events relied on by the Applicant were true, it was his own evidence that he was released after the 1^st Incident and that he departed Nigeria using his own passport.  The Director therefore did not accept that the Applicant was a target of the Nigerian authorities, as he claimed (§16 of the DOI Decision).  It was only his speculation that he was on the “wanted list” of the Nigerian authorities.

18.  The Applicant did not leave Nigeria immediately after learning that he was on the “wanted list” in July 2017 and did not raise his non-refoulement protection claim as soon as possible after arriving Hong Kong on 7 September 2017.  The Director found his conduct inconsistent with that of a person who was facing imminent threat and was in fear for his life.

19.  On the issue of state protection, the Director accepted that IPOB was illegal in Nigeria but found that IPOB members and leaders were allowed the right to fair trial and given access to justice.  There was no evidence to show that the illicit acts in the 1^st Incident were carried out at the instigation of, or with the consent or acquiescence of the Nigerian government.  After considering the relevant country of origin information (“COI”), the Director found that there were avenues in Nigeria for the Applicant to seek justice and protection if his rights were violated.

20.  The Director further found that internal relocation would be viable.  If the Applicant moved to Lagos or Kano, he could avoid the alleged ill-treatment by the police in his hometown.  By the Applicant’s own evidence, he was never harmed while hiding in Ariaria, Aba, Abia State and Makoko Saba, Yaba, Lagos. 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.

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

The Board’s Decision

22.  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.

23.  The Board found his claim to be vague and unsubstantiated and that his testimony to the Board was materially different from his evidence to the Director.  One material inconsistency highlighted by the Board was the duration of his stay in Lagos.  He told the Director that he stayed in Lagos for one night before departing Nigeria but told the Board that he stayed in Lagos for several weeks.  The Board found this to be a deliberate attempt to obfuscate the length of his stay in Lagos with a view to cover up the fact that he experienced no problem there.

24.  The Board was not satisfied with the Applicant’s explanations for the discrepancies and rejected his evidence in its entirety.  The Board found that his credibility was further undermined by the fact that he did not seek protection immediately upon arriving in Hong Kong but waited until his visa had expired.

25.  The Board further found that even if it were wrong to reject the Applicant’s claim for being incredible, his claim would still fail because internal relocation within Nigeria was viable.  The Applicant’s own testimony to the Board confirmed that he lived safely in Lagos, Nigeria for several weeks without problem.  With the Applicant’s skills, it would not be unduly harsh to expect him to relocate to other parts of Nigeria to avoid the perceived risks of harm.

26.  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

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

28.  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”.

29.  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

30.  In the Form 86, the Applicant named the Director as proposed respondent in his intended judicial review application against the Board’s Decision.  This is not right.  The Board’s Decision was not made by the Director but by the Board.  The proposed respondent in this case should be the Board.  The Director should only be the interested party.  In any event, I proceed with this application on the basis that it is an application for leave to apply for judicial review against the Board’s Decision.

31.  In the Supporting Affidavit, the Applicant exhibited a statement setting out his grounds for seeking leave for judicial review.  The Applicant raised the following complaints:

(1)  his claim was on torture and persecution risks but the Director and the Board focused mainly on BOR 2 and BOR 3 risks;

(2)  the decisions of the Director and the Board were Wednesbury unreasonable, in that no person or body could reasonably have reached the decisions and they failed to take into account relevant matters or had considered irrelevant ones;

(3)  the Board had relied on trivial issues referred to in §§7-9 of the Board’s Decision to refuse his claims,

(4)  the Board had wrongly relied on COI to hold that state protection was available to him and the COI available at the time of the determination would have led a reasonable person to a more nuanced view of his claim;

(5)  he had received severe ill-treatment, torture and harm that had reached the required threshold for BOR 3 risk, torture risks and persecution risks. The findings of the Director against him on those risks were baseless; and

(6)  The Board applied the wrong standard of proof of beyond reasonable doubt in finding the Applicant’s evidence inconsistent.

32.  The Applicant failed to attend the court hearing on 19 September 2024 despite notice of hearing having been sent to him on 3 September 2024.  I proceed to deal with this case according to the papers placed before the court.

33.  It is plainly wrong for the Applicant to complain that the Director and the Board had not properly considered his case under the torture risk and the persecution risk.

34.  In §3 of the DOI Decision, the Director expressly stated that the Claim was assessed on all applicable grounds, including torture risk and persecution risk, under the USM.  More detailed discussions on torture risk and persecution risk claimed by the Applicant were set out in §§32-39 of the DOI Decision.  The Board had also discussed the persecution risk and torture risk claimed by the Applicant in §§32-34 and 39-41 of the Board’s Decision respectively.  This complaint of the Applicant is simply not reasonably arguable.

35.  The Applicant complained that the Board had applied the wrong standard of proof in assessing his evidence in requiring him to prove his case beyond reasonable doubt.  In §§13-14 of the Board’s Decision, the Board discussed the burden and standard of proof for non-refoulement claims.  The Board referred to various leading authorities on those issues.  The Board correctly set out the standard of proof in assessing the claimed risks. 

36.  In §§3-11 of the Board’s Decision, the Board set out the Applicant’s evidence and analysed the same in §§21-23 to conclude that it accepted no parts of the Applicant’s claim.  I do not see that the Board had failed to apply the correct standard in assessing the Applicant’s evidence.  I see no error of law in the Board’s aforesaid finding.  The Board had set out its reasons for such finding.  It was nowhere close to Wednesbury unreasonable.

37.  The Applicant provided no particulars or specifics for this complaint of the Board being Wednesbury unreasonable.  It is only bare assertion unsupported by evidence.  Such ground has no merits.      

38.  The Applicant’s other grounds were disagreement to the findings of fact of the Director and the Board.

39.  As pointed out in the Nupur Mst case (supra), challenging the findings of fact of the Board and/or the Director was not permissible in a judicial review unless there were errors in law, procedural unfairness or irrationality in such findings. 

40.  The Board had to put to the Applicant all matters concerning the Board.  The matters referred to in §§7-9 of the Board’s Decision were matters causing concerns to the Board.  The Applicant put forward different versions of event or raised new matter which was not mentioned to the Director.  They were relevant to the Applicant’s credibility.  The Applicant’s aforesaid complaint on the Board’s consideration of his evidence has no merits.

41.  In §§32-42 of the Board’s Decision, the Board set out the reasons for its determination in respect of each risk covered under the USM. 

42.  The Applicant complained that the Board had not properly dealt with the COI.  The Board had considered the relevant COI and noted in §19 of the Board’s Decision that:

“ Given the human rights record in Nigeria set out in the COI there could clearly be serious consequences to the [Applicant] if the Board concludes that he is not in need of international protection when in fact he is in need. The Board therefore give “the most anxious scrutiny” to the issue in this appeal (re: Musisi [1987] Imm AR 250) and where possible the Board resolves any doubts as to the evidence in the [Applicant’s] favour.”

43.  I see no flaw in the aforesaid approach of the Board in dealing with the COI in this case.  However, the Board considered that in this case, the Applicant would not be at risk of any harm if he returned to Nigeria.  The Board found that there was not a real risk that the Applicant would face any of the proscribed forms of harm should he return to Nigeria.  On the viability of internal relocation, the Board referred to the past experience of the Applicant and concluded that the Applicant had a safe and reasonable internal relocation alternative.  “The Board finds the Applicant faces no real risk of any form of harm in Nigeria based on his accepted profile and the reliable country information relating to Nigeria.” (§26 of the Board’s Decision.)  The Board made its findings in the context of the relevant COI. 

44.  The Director set out in the Appendix of the DOI Decision, the 20 items of COI which had been considered by the Director.  The Director further discussed some COI in more details in §§18-20 and 22-24 of the DOI Decision.  The Director had also considered further COI provided by the Applicant.  (See §§6.39-6.41 and §40 of the DOI Decision.) The Applicant provided no particulars for his criticism on the Director’s handling of the COI.  Having considered the Director’s discussion on COI in the DOI Decision, I see no errors of law, procedural unfairness or irrationality on the Director’s findings in respect of state protection and internal relocation.  I see no merits in this complaint of the Applicant.

45.  In the DOI Decision and the Board’s Decision, the Director and the Board had set out the reasons for their respective findings leading to their decisions in rejecting the Claim and the Appeal.  I do not see any merits in the Applicant’s complaints of the findings of fact of the Board and/or the Director being unreasonable or baseless. 

46.  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. 

47.  Having rigorously examined the Board’s Decision, the DOI Decision and the Supporting Affidavit 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. 

48.  The Board accepted no parts of the Applicant’s claim.  The Board found that the Applicant faced no real risk of any form of harm in Nigeria based on his accepted profile and the COI and he could safely and reasonably relocate to a different part of Nigeria.  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 findings 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 is not reasonably arguable.  

Conclusion

49.  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