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Nnabuihe Gift Ekeoma v Director Of Immigration [Decision On Leave Application]

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
JurisdictionHong Kong
Judgment Date09 April 2024
Neutral Citation[2024] HKCFI 972
Subject MatterConstitutional and Administrative Law Proceedings
Judgement NumberHCAL192/2024
Year2024
HCAL192/2024 NNABUIHE GIFT EKEOMA v. DIRECTOR OF IMMIGRATION

HCAL 192/2024

[2024] HKCFI 972

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 192 OF 2024

BETWEEN
Nnabuihe Gift Ekeoma Applicant
and
Director of Immigration Putative Respondent

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 the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

1. Extension of time for the application for leave to apply for Judicial Review of the decision of the Director of Immigration dated 11 July 2023 be refused;

2. The application for leave to apply for Judicial Review be dismissed; and

3. A Restricted Proceedings Order (RPO) be made against the Applicant.

Observations for the Applicant:

Introduction

1. This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 11 July 2023 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claims had been rejected by both the Director and the Torture Claims Appeal Board (“the Board”) under the Unified Screening Mechanism (“USM”) on all applicable grounds.

2. The Applicant is a 40-year-old national of Nigeria who arrived in Hong Kong on 22 June 2008 as a visitor with permission to remain as such up to 13 July 2008 when he did not depart and instead overstayed, and was arrested by police almost one year later on 23 June 2009. 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 members of the ruling political party Peoples Democratic Party (“PDP”) due to his father’s involvement in the opposition party All Progressive Grand Alliance (“APGA”).

Previous Non-Refoulement Claim

3. By a Notice of Decision dated 25 February 2015 and a Notice of Further Decision dated 24 May 2017 the 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”).

4. In his decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those PDP people upon his return to Nigeria as low due to the absence of any past ill-treatment from them, that any adverse interest which the PDP people might have in him due to his father’s past political activities would have all disappeared after all these years since he left the country in 2008, that in any event in 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 177 million people spread across a vast territory of more than 910,000 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 the country away from his home district in large states such as Abia State where it would be difficult if not impossible for anyone to locate him.

5. The Applicant’s appeal against the Director’s decision was dismissed by the Board on 11 December 2018 after hearing him in evidence and submissions and upon finding no merits in his claim or appeal, and that it also confirmed the Director’s decision.

6. The Applicant’s application for leave to apply for judicial review of the Board’s decision was also refused by this Court on 31 December 2021 upon finding none of the proposed grounds for his intended challenge reasonably arguable, that there was no error of law or procedural unfairness in his process before the Board or in its decision, and that there was no prospect of success in his intended application (HCAL 140/2019 [2021] HKCFI 3896).

7. The Applicant’s subsequent appeal against the Court’s decision was dismissed by the Court of Appeal on 25 July 2022 (CACV 11/2022 [2022] HKCA 989).

8. The Applicant’s Notice of Motion for leave to appeal against the Court of Appeal’s decisions was also dismissed by the Court of Appeal on 2 September 2022 ([2022] HKCA 1262).

Request To Make Subsequent Claim

9. Some 7 months later on 3 April 2023 the Applicant in writing to the Immigration Department requested to make a subsequent claim on the basis that he still fears of being harmed or killed by those PDP people who are still looking for him, that while in Hong Kong he has joined the separatist group Indigenous People of Biafra (“IPOB”) aiming to restore the defunct Republic of Biafra in Nigeria but which is considered as a terrorist group by the Nigerian Government that he fears of being arrested and prosecuted by the Nigerian authorities upon refoulement, and that being a Christian that he also fears of being harmed or killed by various Muslim extremists or terrorist groups including Fulani Herdsmen and Boko Haram which pose big risks to Christians like him due to their hardline anti-Christians activities in Nigeria.

10. There are however constraints on a claimant who has previously made a

non-refoulement claim to make a subsequent claim, as stipulated by Section 37ZO of the Immigration Ordinance as follows:

“(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that –

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3) In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.

(4) If an immigration officer decides that a person may make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision.

(5) If an immigration officer decides that a person may not make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision, and the notice must also include the reasons for the decision.”

11. Accordingly, on 21 April 2023 the Director required the Applicant to provide further information and evidence in writing in support of his request within 14 days, which he subsequently did via his lawyer from Duty Lawyer Service (“DLS”).

12. By a Notice of...

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