CHUKWUEMEKA NDUBISI ANTHONY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 550 /2020

[2021] HKCA 676

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 550 OF 2020

(ON APPEAL FROM HCAL NO 1727 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 21 May 2020, Deputy High Court Judge K W Lung refused to grant extension of time for the applicant to apply for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim and dismissed the leave application[1]. On 29 September 2020, Deputy High Court Judge C P Pang granted an extension of time[2] for the applicant to file a Notice of Appeal against the said decision. The applicant lodged a Notice of Appeal on 12 October 2020.

2.  The applicant is a national of Nigeria.  He is 29 years old.  He came to Hong Kong on 16 October 2015 as a visitor.  He subsequently overstayed and was arrested by the police on 4 February 2016.  He lodged his non-refoulement claim on 15 April 2016 on the basis that he will be harmed by his uncle if he returns to Nigeria because he was robbed on his way to put money into a bank for his uncle and he is unable to pay back the money to his uncle.

3.  The applicant consented to the disposal of this appeal on paper by the Court of Appeal.  He lodged his written submissions on 19 February 2021 pursuant to the directions of the Registrar of Civil Appeals. 

The Director’s decisions

4.  By a Notice of Decision dated 9 September 2016, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on the grounds including torture risk[3], BOR 3 risk[4] and persecution risk[5]. 

5.  Taking into account the nature and extent of the claimed injuries as well as the intensity and frequency of the adverse treatments the applicant faced from his uncle or his uncle’s people, the Director considered that the applicant’s uncle does not have an intention to seriously harm him and the level of risk of harm from his uncle upon the applicant’s return is assessed to be low.  The Director further found that the applicant’s problem is a private dispute which has nothing to do with the Nigerian government or authorities. The Director also held that the availability of state protection and internal relocation alternatives further lowers or negates the perceived risk.

6.  By a Notice of Further Decision dated 5 June 2017, the Director rejected the applicant’s claim on BOR 2 risk[6] in the absence of response from the applicant to the invitation to submit additional facts which may be relevant to his non-refoulement claim.

The Board’s decision

7.  The applicant’s appeal against the Director’s decisions was heard before the Board on 29 June 2017.  The Board found that the applicant is not a witness of truth as his oral evidence was extremely vague, he was unable to describe the events or circumstances in detail and his account was fundamentally and materially different from that given to the Director and the applicant could not account for the differences.  The Board concluded that the applicant failed to establish any of the facts he has asserted save that he is a national of Nigeria.  Thus, the Board rejected the appeal on 24 October 2017.

The intended judicial review

8.  The applicant filed a Form 86 and an affirmation on 23 August 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.  His application was filed outside of the three-month requirement under the Rules of the High Court (Cap 4A) Order 53, rule 4.  

9.  He put forward the following grounds for his intended challenge:

(1)     The Director and the Board reached the decisions wrongly in assessing his claim.  The decisions are unreasonable and unfair.  The right to life must be protected from extra‑judicial killings such as what the applicant may face if he would be deported to his country.  The Director failed to take into account or failed to give sufficient weight to such argument;

(2)     The corruption and incompetency of the administration in his country is still very serious;

(3)     The Director failed to attain high standard of fairness.  If the applicant did not run away, he would certainly have been harmed by his uncle.

The judge’s decision

10.  DHCJ K W Lung heard the application on 24 December 2019 and granted leave to the applicant to amend his Form 86 by deleting the Director as respondent and by adding the Director as an interested party instead. 

11.  The judge considered the applicant failed to show that the Board had committed any error in its application of the law to his case or in coming to its conclusion on the facts of the case.  The judge held that the applicant is unable to show that he has any reasonable prospect of success in his intended judicial review and so he refused to grant extension of time and dismissed the leave application on 21 May 2020.

Grounds of appeal

12.  The applicant stated as his grounds of appeal in the Notice of Appeal filed on 12 October 2020 that his life is in danger because his uncle wants to kill him and the court should consider this.

13.  His further submissions in writing may be summarized as follows:

(1)     The applicant’s life is in danger in Nigeria as he is a Christian and the president of Nigeria is a Muslim who encourages the killing of Christians. Both the police and soldiers in Nigeria are killing Christians every day;

(2)     He will also face danger from his uncle because he does not have enough money to repay his uncle.  His uncle is a very wealthy business man who has a close relationship with the government officials.  The Nigerian government will not protect the applicant and he cannot relocate to any other country;

(3)     The Country of Origin Information relied on by the Director should be disregarded as most of the information was prepared by Muslim journalists while Christian journalists are no longer allowed to post correct reports in Nigeria.

Legal Principles

14.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

15.  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers 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 issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and Country of Origin Information 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.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, 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 judicial review.

Analysis and disposition

17.  The Board did not accept the applicant’s claims as it found significant discrepancies in the applicant’s evidence for which the applicant failed to offer explanation.  In the present appeal, the applicant has still not explained the discrepancies and has not provided evidence to refute the Board’s findings.  He also failed to show any errors of law or procedural unfairness or irrationality in the decision of the Board.

18.  The judge’s decision in refusing to grant extension of time and dismissing the leave application is well justified.  The applicant failed to demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

19.  For the above reasons, the appeal is devoid of merit.  We therefore dismiss the appeal.