ANWACHUKWU CHIMA COSMAS v. TORTURE CLAIMS APPEAL BOARD

HCAL 1503/2018

[2021] HKCFI 1340

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1503 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 refused.

Observations for the Applicant:

1.  The Applicant is a 41-year-old national of Nigeria who arrived in Hong Kong on 4 August 2011 with permission to remain as a visitor up to 25 August 2011 when he did not depart and instead overstayed and was arrested by the police on 27 December 2015. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Nigeria he would be harmed or killed by the terrorist group Boko Haram for being a Christian. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised as a Christian in Kaduna State, Nigeria. After leaving school he ran his own trading business in electronic goods in his home district.

3.  In about 2009 violence caused by Boko Haram started to infiltrate to the Applicant’s home state in Kaduna, and in 2010 some of their members had appeared in the Applicant’s neighbourhood spreading threats that those residents who were not Muslims would be killed.  

4.  One day in April 2010 some Boko Haram members came into the Applicant’s shop and demanded to know whether he was a Muslim, and when he admitted to be a Christian, they beat him all over the body that he fell onto the floor, and before they left, they threatened that if he did not convert to Islam, he would be killed. Afterwards the Applicant was taken to the hospital where he was kept for 3 days for medical treatment.

5.  After his discharge from hospital the Applicant lived in fear of the Boko Haram, and one day in October 2010 after he witnessed their members fire-bombing a church in the neighbourhood killing 35 people in the attack, the Applicant decided it was no longer safe to remain in Nigeria, and so on 3 August 2011 he departed for Hong Kong where he overstayed, and upon his subsequent arrest by the police on 27 December 2015, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 26 January 2017 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.  By a Notice of Decision dated 21 March 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

7.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Boko Haram upon his return to Nigeria as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence that he had been specifically targeted by Boko Haram, that the Nigerian government has in coalition with neighboring countries taken military actions against the terrorist group and that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) shows that reasonable internal relocation alternatives are available in Nigeria with a large population of 186 million people spread across a vast territory of more than 923,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other parts of Nigeria away from his home district and the northeastern part of the country where Boko Haram were active and in large cities such as Lagos where it would be difficult if not impossible for him to be located.

8.  On 3 April 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 9 March 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 7 June 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found no evidence that the Applicant had been specifically targeted for harm by the Boko Haram that his risk of harm from them is no different from the ordinary average citizen in Nigeria, that the Nigerian government has regarded Boko Haram as terrorists and taken military actions against them that state protection would be available to the Applicant upon his return to Nigeria that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 30 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  that the Board failed to provide explanation as to what applicable grounds and what evidence or grounds are applicable to the Applicant’s claim;

(2)  that the Board dealt with the Applicant’s claim as some hearsay evidence that rendered his case useless and a failure; and

(3)  that the Board was wrong to reject that the Applicant was a Christian which rendered his case useless and a failure.  

11.  These are however all just broad and vague assertions of the Applicant without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Board deal with his claim as hearsay, and given the detailed analysis and reasoning of the Adjudicator in paragraphs 59 – 75 of the decision with the benefit of hearing the Applicant in his evidence during his appeal hearing, it is plainly incorrect in the Applicant’s complaint that the Board failed to give any explanation for its determination of his claim, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

12.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.   

13.  The fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate away from his home district or the northeastern part of Nigeria where Boko Haram operated to the safer southern part of the country, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

14.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

15.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

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