ELHADJ ADAMOU SANI v. TORTURE CLAIMS APPEAL BOARD [Decision on Leave Application]

HCAL 678/2018 [2021] HKCFI 833 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 678 of 2018 BETWEEN Elhadj Adamou Sani Applicant and Torture Claims Appeal Board Putative Respondent and 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:  consideration of the documents only; or consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court; Order by Deputy High Court Judge Bruno Chan: Leave to apply for judicial review refused. Observations for the Applicant: The Applicant is a 44-year-old national of Nigeria who last arrived in Hong Kong on 13 July 2013 with permission to remain as a visitor up to 18 July 2013 when he did not depart and instead overstayed, and was arrested by police on 18 December 2013. 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 high priest of his home village over some religious dispute. He was subsequently released on recognizance pending the determination of his claim. The Applicant was born and raised by his Nigerian parents in Konni, Maradi, Niger, but after his parents divorced when he was small, he was brought by his father to Nigeria where they lived in Village Umuagor in Ideato North of Imo State and where he was given his Nigerian citizenship. One day in 2013 the head of his home village known as the Eze was struck by lightning and died, and in accordance with the local traditions and burial rituals for the Eze, the Applicant together with a few other young men in the village were chosen by the village high priest to be sacrificed and to be buried together with the Eze in his funeral, and as a result the Applicant was put under detention by order of the high priest in some prison cells pending the Eze’s funeral, but the Applicant subsequently managed to escape and fled to another town, and as he was still fearful for his life, he contacted his mother in Niger who advised him to flee the country, and so in July 2013 he departed Nigeria for Hong Kong where he subsequently overstayed, and upon his arrest by the police, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 1 August 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). By a Notice of Decision dated 23 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”). In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his village high priest and his followers upon his return to Nigeria as low due to the low intensity and frequency of past ill-treatment from them, that after all these years it is doubtful that they would still have any adverse interest in him in particularly long after the burial of the Eze, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show 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 part of away from his home district in large cities such as Lagos where it would be difficult if not impossible for the village high priest to locate him, or to return safely to his birth place Niger without any risk of any harm from anyone. 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 8 January 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 6 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director. In its decision the Board found the Applicant’s evidence as to his alleged escape from the village high priest and his followers incredible that it doubted his claim of risk of harm from them as unreliable, and that in any event in the absence of any reliable evidence of any state or official involvement that state/police protection would be available to him upon his return to Nigeria as well as options of reasonable internal relocation for him to move safely to other area of Nigeria away from his home district or even for him to return to Niger without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds. On 19 April 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely attached copies of the decision and other documents previously submitted to the Immigration Department but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law 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 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. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective 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 to other part of Nigeria or to return to Niger, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526. 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. 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. Dated the 26th day of March 2021. (TAM Kam-man) 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 his solicitors must: 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)). Sent to the Applicant on 26th March 2021 Elhadj Adamou Sani Applicant’s ref. no.: Nil. 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 26th March 2021 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 6735/17/4/11/NER4 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1655/16 (Formerly RBCZ 1141/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) ____________________________________________________________________________ Form CALL-1