OFOR IKECHUKWU MICHAEL alias RABE LAWAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1227/2019

[2023] HKCFI 2716

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1227 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 28 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant is a national of Nigeria. He last entered Hong Kong as a visitor on 15 February 2015 and was permitted to stay for 10 days. He did not depart and had overstayed since 26 February 2015. On 29 July 2015, he was arrested by the police for overstaying. On 1 August 2015, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by members of the Black Axe group because he witnessed a shooting incident that led to the imprisonment of the Black Axe members.

5.  According to the applicant, the culture of cult or gang groups was popular in his university. There were around five of them in the university and each of them had the unique dress codes and codes of conduct. The Black Axe was the largest group and they were famous for having the all black outfits and for harassing the students and professors. One evening in August 2011, the applicant witnessed a shooting incident conducted by two Black Axe members, in which the victim died from the gunshots. The shooting incident was investigated by the police and the applicant attended the identification parade. The two shooters were arrested and, two or three months later, sentenced to imprisonment. Since then, the revenge against the applicant started. In two incidents, the members of Black Axe attempted to shoot the applicant. The applicant was able to escape both shootings. His complaint to the police was of no avail. Out of fear, the applicant fled to Hong Kong. While he was in Hong Kong, he was informed that the Black Axe was still looking for him. Thus, he sought protection in Hong Kong. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 16 November 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

(i)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(ii)  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

(iii)  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

(iv)  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the applicant’s claimed risk of harm was groundless [14]-[25]; (ii) state protection would be available to him [26]-[28]; and (iii) internal relocation was a viable option [29]-[32].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 31 January 2018, the Board conducted an oral hearing for his appeal, during which he testified with the assistance of an interpreter [5].

9.  The Board recapped the applicant’s claim and his personal background [22]-[40]. Having considered the evidence, the Board made the following findings. While it was feasible about the presence of the Black Axe in the claimed university, the applicant failed to prove that he was a student of the said university [41]-[42]. It also found that the applicant provided inconsistent evidence as to the details of the shooting incident and of the subsequent investigation and arrest [43]-[45]. Meanwhile, the applicant’s description of the attire of the Black Axe was inconsistent with the available country of origin information (“COI”) [46]. The COI also showed that the Black Axe did not engage in violence against civilians who were not involved in cult activities [47]. There was no information that reprisals were sought against the civilians and thus his alleged shooting incidents were far-fetched [48]. Besides, the applicant was unable to show any proof that he was once a student in the said university [49]-[50]. In any event, the influence of the Black Axe was localized and it would not be unduly harsh for the applicant to relocate to other area if refouled [52]-[59].

10.  For the aforesaid findings, the Board rejected the applicant’s claim and dismissed his appeal

Application for leave to apply for judicial review of the Board’s Decision

11.  The applicant has filed Form 86 dated 7 May 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of this application, he repeated his story about the Black Axe’s dress and powers and that police protection would not be available.

DISCUSSION

13.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …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.”

16.  As to his grounds in paragraph 12, supra, they are the same story in support of his application before the Director and the Board. The Board had, for the reasons given, rejected his evidence. There is no valid ground from the applicant to challenge the Board’s Decision.

17.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

19.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his 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