DURU CHARLES ANAYO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 283/2018

[2018] HKCA 900

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 283 OF 2018

(ON APPEAL FROM HCAL 549/2017)

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J U D G M E N T

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Hon L Chan J (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 19 June 2018 in HCAL 549/2017 refusing leave to the applicant to commence judicial review proceedings. 

2.  The applicant is a Nigerian National.  He arrived in Hong Kong on 31 May 2011 and was permitted to remain for seven days.  He was granted an extension of his visa until 27 June 2011.  He did not leave upon the expiry of his visa and overstayed since 28 June 2011.  The records of the Immigration Department showed that on 27 June 2011 another person using his identity and passport left Hong Kong.  He was arrested a year later on 27 June 2012.  He lodged a non-refoulement claim on the same day and was released on recognizance on 3 August 2012.  His claim was based on his fear of being persecuted, or even killed, by an unknown group of Islamic attackers as well as local officials in Nigeria who targeted at Christians like him.

3.  The background facts are sufficiently set out by the Judge in [5] to [8] of the CALL-1 Form at [2018] HKCFI 1287.  In short, the applicant was single, belonged to the Igbos clan and was a practising Christian.  He lived in Lagos State in about 1995.  He attended a Christian church until coming under attack in 2008 and 2010 by an unknown group of Islamic believers.  On the first occasion, he was chased by some 50 armed attackers.  They questioned people and assaulted those who admitted to be Christians.  He ran away, was hit by a car and had bone fractures and internal bleeding.  He had a surgery on his leg and spent six weeks in hospital.  He believed that the local police supported the Islamic attackers and thus did not report the matter to the police.  There was often news that Christians were killed in other states in Nigeria for religious reason. 

4.  The second occasion was in September 2010 when he left his church and saw some 30 armed attackers in Islamic clothing and some in police uniforms.  They shouted at churchgoers and demanded their conversion to Islam.  They attacked the churchgoers indiscriminately.  He ran away and hid in a park for about a week and did not dare to attend church services.  He moved to stay at a friend’s home far away from the church for a month before coming to Hong Kong.  He believed his life was in danger from Islamic extremists if he remained in Lagos State.  He left Nigeria on 30 May 2011.  He did not know how to make a non-refoulement protection claim upon arriving in Hong Kong and did not know the procedure for reporting the loss of his passport.  His family remained in the home village and was not physically attacked or verbally threatened.  However, he believed that he could not relocate within Nigeria because the Islamic extremists were everywhere persecuting Christians.

5.  By the Notice of Decision dated 28 August 2015, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The decision covered BOR 3 risk[1], torture risk[2], and persecution risk[3].  On 23 March 2017, the director invited the applicant to submit additional facts, if any, that the applicant might consider relevant to his non-refoulment claim on all applicable grounds including the ground of BOR 2 risk[4] by 6 April 2017.  The applicant did not supply any additional facts by the deadline.  The director by a further decision of 12 April 2017 also rejected the applicant’s claim on BOR 2 risk.

The decision of the Torture Claims Appeal Board

6.  The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After an oral hearing on 6 June 2017, the Board dismissed the appeal on 6 July 2017.  The Board found at [50] to [57] of its decision that the applicant’s credibility was damaged to an extent that the Board could not attach any weight to what he said on he had experienced in Nigeria in the past.  The Board was satisfied that he had invented the factual basis of his case for re-foulment protection. On the totality of the evidence, the Board was not persuaded that there was a real chance that he would be subjected to ill-treatment if refouled.  He failed to establish his claim under all applicable grounds.

The Judge’s decision

7.  The application for leave to commence judicial review proceedings was in respect of the decision of the Board.  The applicant advanced the following grounds which were annexed to the Form 86, the notice of application for leave to apply for judicial review filed on 24 August 2018:

(1)   the Board, in refusing the application on the ground that the applicant had not satisfied the requirements, had fettered its discretion;

(2)   the Adjudicator had acted in a procedurally unfair manner in dealing with the appeal;

(3)   the Board’s refusal was unreasonable or irrational in the public law sense or was a result of procedural errors or unfairness; and

(4)   the Board failed to meet the greater care and duty owed to an unrepresented applicant.

8.  The applicant further advanced the following grounds in his affirmation in support of his application for leave:

(1)   The hearing as unfair because of the lack of care of the Board to make appropriate arrangements in relation to the hearing bundle.  The bundle was served on him just 6 days before the appeal hearing with the majority of the documents including the director’s skeleton submission were in English.  He thus had insufficient time to prepare for the hearing because of his limited skills in English and was unrepresented.  He was not able to find a reasonable interpreter that he could afford as he did not have any income.

(2)   He was confused of what was happening as he lacked understanding on what would happen in the hearing because he was not provided with the bundle earlier or with interpretation.     

(3)   The Board had relied on hearsay evidence or news from source not officially recognized and on fairly outdated cases.  The Board’s lack of credible source of information resulted in its making groundless speculations that it was safe for him to return to Nigeria. 

9.  On 19 June 2018, the Judge gave her decision refusing to grant leave to the applicant to apply for judicial review.  The Judge, after summarizing in the CALL-1 Form the background of the case as well as the decisions of the director and the Board, gave reasons in [16] – [19] (wrongly numbered for the last two paragraphs) for her refusal to grant leave:

“Leave to apply for judicial review

16. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to be without fault, he analysed the material, claims and evidence carefully. I find no substance in the grounds of this application; they are not substantiated.

17. In his supporting affirmation, the applicant claims that he was not prepared for the appeal because the appeal bundle had been served on him late and he had no money to hire an interpreter. This meant that he was confused on the day of the hearing and did not understand the process. I find no merit in this ground because there is no record in the decision of a complaint of this nature from the applicant. There was an interpreter present to assist him if he had required it. There was obviously discussion of an adjournment of the appeal which was refused; if his complaint was real he would have raised it then.

18. The applicant is also aggrieved that his credibility was doubted and the adjudicator did not find him a genuine claimant despite him answering all the questions truthfully. He gives no particulars to support this ground. Recently the Court of Appeal in Re Lakhwinder Singh 2018 HKCA 246 at (13) said that;

‘evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such a valuation based on the evidence available to them. The court will not usurp their roles as primary decision-makers. Judicial review is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in absence of any legal error.’

The adjudicator gave full reasons for his finding the applicant’s credibility was lacking, the TCAB had a rational basis defined against the credibility of the applicant. I will therefore not interfere with the adjudicator’s finding. There is no merit in this ground.

19. Lastly, the applicant submits the adjudicator relied on Country of Origin information that was hearsay, out of date and not officially recognised. Again he does not provide any particulars to support this ground. In view of his finding that the applicant was not credible, the adjudicator did not need to consider such information and State protection. He did not accept the applicant was at any risk if refouled. There is no merit in this ground.

18. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

19. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

The Appeal

10.  In the Notice of Appeal filed on 3 July 2018, the applicant put forward the following grounds of appeal:

“The plaintiff (applicant) will face hardship if he is to return back to his home country and that the torture claims Appeal Board was significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

11.  In the skeleton submissions lodged by the applicant on 29 October 2018, he mentioned some general legal principles in relation to non-refoulement claim and the high standard of fairness required in considering such case.  However, he did not say anything that is directly related to his ground of appeal.

12.  We heard the appeal on 27 November 2018. 

Discussion

13.  The ground of appeal says that the applicant will face hardship if the applicant is to return to Nigeria, but the Board had relied on hearsay evidence or news not from source not officially recognized and fairly outdated cases.  It further says that the Board’s lack of credible source of information resulted in its making groundless speculations that it was safe for him to return to Nigeria. This ground had been put before the Judge but was duly rejected.  We agree with the Judge’s finding at the first [19] of the CALL-1 form that this contention lacks particulars and is devoid of merit.  The Board rejected the applicant’s case for lack of credibility on the part of the applicant, and thus, the argument on country of origin information cannot assist his case at all.

14.  Further, in an appeal, this Court focuses on examining the correctness of the Judge’s refusal of leave in the light of the grounds of appal advanced by the applicant in the notice of appeal, see: Re Shrestha Santosh Kumar [2018] HKCA.  If no viable ground is put forward to reverse the Judge’s decision, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for leave to apply for judicial review.  We see no merit in the ground of appeal put forward by the applicant in this appeal as it does not identify any error in the Judge’s decision.  The appeal plainly has no prospect of success.

15.  In any event, having read the materials put before us, we are of the view that the findings of the Board, as well as the observations of the judge, are justified.  We do not see any errors of law or procedure in the proceedings before the Board.  Nor is there any reasonably arguable basis to challenge the fairness of the process.  Determination of the merits of a non-refoulement claim is essentially a matter for the Board, not for the court.  We do not see any reasonable basis to upset the decision of the Board by way of judicial review. Accordingly, we agree with the Judge that leave to apply for judicial review should be refused.

16.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.