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HCAL 2938/2018
[2020] HKCFI 2878
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2938 OF 2018
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Orji Obinna Aso |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge P. Li:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Background
1. The applicant was born on 14/6/1986 in Aba, Abia State, Nigeria. He completed primary education. Around 2005, he started his fashion business in Central Katsina Market. He was a Christian since 2005.
2. Around 2009, he borrowed 10 million Nigerian Nairas (NGN) from a money lender for investment in his business. According to the loan agreement, he had to repay a monthly sum of $183,000 NGN until September 2014.
The attack from Fulani herdsmen [1]
3. On 13/3/2014, a group of Fulani herdsmen attacked people in Katsina. A group threatened him to convert to Islam. He refused. They damaged his goods and set fire to the market. He was assaulted. He managed to escape and sought treatment at the General Hospital. He had bruises and swellings all over his body. He had an open wound at his right leg. He was hospitalized for 2 days.
4. He reported to the Central Police Station after discharge. The officers refused to investigate. He believed the reason being that the officers were Muslims. He had to consult a private orthopaedist. It took 4 months to recover.
5. After the attack, he closed his shop. He could not repay the money lender. He had only repaid the monthly sum from 2009—June/2012.
The threat from the money lender [2]
6. Around May 2014, the money lender kept on calling him to press for repayment. The money lender threatened to kill him.
7. One day in May, five unknown men took him from his home to an unknown room. They claimed to be sent by the money lender. They assaulted him. He was forced to sign an agreement to repay the debt in 3 months. He was then released with a dislocated arm, wounds and bruises all over his body. He was hospitalized for about 2 days. He consulted the same private orthopaedist. He recovered in a month.
8. After discharge from the hospital, he reported the incident to the Central Police Station but the officers again refused to investigate.
9. In July 2014, the money lender came to his home and threatened him. He knew he could not repay. He therefore left home to stay with his friend at Unguwar Rimi area. The money lender later learned about his escape and threatened to kill him if the debt was not repaid in 6 months. He did not report this incident to the police. He could not afford any bribe. He was afraid of the money lender who had connections with the police and public officials.
10. Internal relocation was not possible as the money lender could locate him anywhere in Nigeria. Further, the Fulani herdsmen who associated with Boko Haram had been targeting Christians in Nigeria. He was in great risk of being attacked or killed.[3]
11. In December 2014, he fled to Lagos and stayed with a friend. He was told that the money lender threatened to kill him. He was invited to join an Evangelical mission in January 2015 in Hong Kong. In May 2015, he left Nigeria for Hong Kong.
12. He overstayed in Hong Kong since 28/5/2015[4]. He was arrested for overstaying on 3 March 2016. He filed the non-refoulement claim on 6 March 2016. He was released on recognizance on 16/4/2016.[5]
The decision of the Director
13. The Director rejected his claim on 3 November 2017. The Director found that the risk of harm from the money lender and the Fulani herdsmen was low [6]. The reasons were as the following:
a. About the attack by the Fulani herdsmen, he was able to escape even after the attack. He checked his goods for an hour before going to the hospital. He was prescribed general medication. There was no medical report.
b. About the attack by the five unknown men, there was no corroborative evidence that they were from the money lender. He did not know the whereabouts of the room. He was not sure how long he was detained. He was not certain if he went to a hospital or a clinic afterwards. He was prescribed ointment and painkillers. There was no medical report.
c. The money lender started to pursue the debt in May 2014. It was almost two years after he failed to pay the monthly sum since June 2012. There was no reason for this as the money lender knew the whereabouts of his shop and home.
d. There was no explanation why the money lender had confidence in the applicant despite the latter had failed to pay for 2 years already. He could not tell the approximate outstanding balance of the debt.
e. There was no security for the loan which was equivalent to USD 27,771—not a small amount in Nigeria.
f. He was safe while staying with his friend in Unguwar Rimi and Lagos from May 2014 to May 2015. The money lender could not locate him. Nothing happened to his family who stayed at home as usual.
g. His mother and siblings were Christians, they were not attacked by the Fulani herdsmen. There was no prior encounter with the herdsmen. There was no way they could know his religion.
h. The news article filed by the applicant to the Director did not say that the attack by the herdsmen was related to religion, in particular, targeting Christians. It was about the dispute between ethnic Fulani cattle herders and local farmers. It was not linked to Boko Haram.[7]
i. According to some COI, the Fulani herdsmen mainly attacked farmers in the rural areas. They did not target Christians in the cities. As to the Boko Haram, the attacks mainly targeted Muslims in the North and seldom took place in the south where the population was predominantly Christians. In fact, the president had promised to tackle the insurgency of Boko Haram as a key priority. Cities like Lagos and Abuja were safe.[8]
14. There was no official involvement. There was no instigation, consent or acquiescence from anyone in official capacity. [9]
15. The Director acknowledged that a few COI revealed that the Nigerian police were corrupt and inefficient, there were other COI reporting that the Nigerian government could enforce the law and protect its citizen. There were on-going improvements with positive results recently. There was effort to fight corruption and malpractice. There were official channels for complaints. The Director concluded that there was reasonable State protection.[10]
16. He was safe for nearly a year while hiding in Unguwar Rimi and Lagos. This indicated that the influence of the money lender was localised at Katsina state. There was an increasing Christian population especially in the south and central regions. There was the national church located at Abuja which was the capital city. Other cities such as Lagos, Kano and Ibadan were reasonable options. It would not be unduly harsh for the applicant to relocate.[11]
17. The Director found that the applicant’s fear that he would be harmed if returned to Nigeria was unlikely to materialize. There was no ill-treatment of minimum level of severity. There was reasonable State protection and options for internal relocation. The claim under BOR 3 failed.
18. Likewise, there was no evidence of arbitrary deprivation of life in Nigeria. The claim under BOR 2 failed.
19. The attack from the money lender was a private matter if it was true. There was insufficient evidence that the attack by the Fulani herdsmen was of Convention reasons. The claim on persecution risk failed.
20. The fear was unlikely to materialise. The injury was not severe pain and suffering within the definition of ‘torture’ under s. 37U of the Immigration Ordinance. There was no official involvement. Torture claim failed.
The decision of TCAB
21. The TCAB held a hearing on 24/7/2018 in which the applicant gave evidence. The adjudicator rejected the appeal on 26/11/2018.
22. The adjudicator pointed out the following important points which affected the applicant’s credibility:
a. The applicant told the TCAB that after he left Nigeria, the money lender located his brother in Lagos and attacked him. The money lender got the applicant’s phone number in Hong Kong and threatened him on the phone. This was never mentioned in his NCF and the screening interview before the Director. The applicant could not give a clear explanation.[12]
b. The applicant submitted an article dated 13/3/2014 by the BBC News and claimed an attack had occurred in Katsina market. That article only reported attacks to villages outside Katsina. There was no attack in Katsina city. The applicant’s description of the attack was not revealed in any coverage according to the research of the adjudicator in the Telegraph and the Nigeria Watch.[13]
c. The applicant did not apply for non-refoulement once decided to remain in Hong Kong. He waited until after his arrest in 2016. The applicant said he was scared. There was a change of the pastor and his relationship with the new pastor was not good. He had no advice from anyone. [14]
d. The applicant told the TCAB that the money lender could locate him. The money lender travelled all over the country and had wide connections. There were many people working for him.[15]
23. Having considered the applicant’s evidence as a whole, the adjudicator found that some of the events might have taken place, however, the applicant had exaggerated them and had added to his claim after the fact. The adjudicator doubted the credibility of the applicant. [16]
24. In relation to the attack by Fulani herdsmen, there was no report that any such attack had occurred in the Katsina city from reliable media sources[17]. The adjudicator was of the view that the applicant made used of the article he submitted to boost his claim. There was no serious attack and bombing in the Katsina city as the applicant claimed. The applicant did not confirm during the hearing that the herdsmen threatened to kill him unless he converted to Islam. The adjudicator rejected the applicant’s claim that there was Fulani herdsmen attack at the Katsina market and that he was threatened by them to convert to Islam.[18]
25. For torture claim, the adjudicator found that the ill-treatment by the money lender did not amount to torture—severe pain and sufferings—as defined under s. 37U of the Immigration Ordinance. The ill-treatment was not for any of the purposes within the definition. The COI indicated that there was reasonable State protection and there was no evidence of State involvement. There was no evidence of a consistent pattern of flagrant violation of human rights.[19]
26. For BOR 3 and BOR 2, the TCAB concluded that there was no CITDP which attained a minimum level of severity. There was no genuine and substantial risk of ill-treatment. There was reasonable State protection and reasonable options for relocation. The evidence did not support that there was any risk of arbitrary deprivation of life. Both claims failed.[20]
27. The adjudicator found that the applicant’s fear came from the money lender, it did not arise from any Convention reasons. Internal relocation to Lagos was a viable option. The claim on persecution risk failed.
Judicial review
28. The applicant filed the leave application on 21/12/2018 against the removal order from the Immigration Department. In his affidavit, the applicant reiterated that his life was in danger in Nigeria.
29. In this application, this court would consider whether there is any error of law or procedure. Whether the decisions of the TCAB and the Director were reasonable. This court would not interfere with the finding of facts unless it is obviously wrong.
30. The adjudicator had analyzed the evidence and pointed out the reasons for not accepting the applicant’s story. She found that the applicant was not credible. The events claimed by the applicant, in particular the attack at Katsina, did not occur. She was not convinced that the money lender had harassed the applicant as claimed.
31. In my view, her conclusion is reasonable. It is consistent with that of the Director. There is no error of law and procedure in both decisions.
Conclusion
32. I refuse leave for judicial review. This case is not reasonably arguable. There is no reasonable prospect of success.
Dated 12th day of November 2020
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(Mike Mak) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant
on 12 November 2020
Orji Obinna Aso
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 12 November 2020
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 9221/17/11/232/NI169
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2399/17 (formerly RBCZ 11120/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Paragraphs 5(f-j), the decision of the Director.
[2] Paragraphs 5(k-v), the decision of the Director.
[3] Paragraphs 5(w-y), the decision of the Director.
[4] He arrived in Hong Kong on 14/5/2015. He was allowed to stay as a visitor until 28/5/2015.
[5] Paragraph 7, the decision of the Director.
[6] Paragraphs 11-73, the decision of the Director.
[7] Paragraphs 66-72, the decision of the Director.
[8] Paragraphs 121-132, the decision of the Director.
[9] Paragraphs 74-77, the decision of the Director.
[10] Paragraphs 78-96, the decision of the Director.
[11] Paragraphs 97-116, the decision of the Director.
[12] Paragraphs 44-46 & 61, the decision of the TCAB.
[13] Paragraphs 47-49 & 62, the decision of the TCAB.
[14] Paragraphs 54-55 the decision of the TCAB.
[15] Paragraphs 56, the decision of the TCAB.
[16] Paragraphs 58-59, 60- 61, the decision of the TCAB.
[17] The Nigeria Watch and the Guardian.
[18] Paragraphs 62 the decision of the TCAB.
[19] Paragraphs 65-79, the decision of the TCAB.
[20] Paragraphs 80-83, the decision of the TCAB.
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