UZOMA CHUKWUNONSO CALISTUS v. TORTURE CLAIMS APPEAL BOARD

HCAL 27/2021

[2025] HKCFI 5664

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 27 OF 2021

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 50-year-old national of Nigeria who arrived in Hong Kong on 9 May 2007 as a visitor with permission to remain as such as extended up to 23 May 2007 when he did not depart and instead overstayed, and was arrested by police one year later on 24 May 2008, and for which he was subsequently convicted and sentenced to prison for 4 months.  After his discharge from prison and was referred to the Immigration Department for deportation, he raised a torture claim later taken as a non-refoulement claim for protection on the basis that if he returned to Nigeria he would be harmed or killed by his paternal uncle over some land dispute between his uncle and his father. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised as a Christian in Onitsha, Anambra State, Nigeria, and during each Christmas and Easter his parents would bring the family to visit his father’s ancestral village in Amanuju some 60 km from Onitsha where his father had inherited some farmland from the Applicant’s grandfather upon his death.

3.  However, his paternal uncle Tobalis, his father’s younger brother who lived in the same village coveted his father’s farmland and had been demanding his father to give up the land to Tobalis, but when the Applicant’s father refused, it led to on-going conflicts between the 2 families for years since when the Applicant was just a child.

4.  As Tobalis was said to be able to use black magic to hurt or poison his enemies, the Applicant was told by his parents and believed that Tobalis had done the same against his father by causing pain to his father’s legs, and by sending his followers to threaten the Applicant’s family by firing gun shots outside their home and even tried to burn it down by arson, and when the Applicant’s own garments business in Onitsha was subsequently closed down in 2006, he believed that it was caused by Tobalis’s black magic.        

5.  As a result the Applicant became fearful for his safety and departed Nigeria in May 2007 for Hong Kong and subsequently overstayed, and upon his arrest by the police one year later in May 2008 he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 25 August 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.  By a Notice of Decision dated 20 November 2014 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

7.  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 uncle Tobalis upon his return to Nigeria as low due to the absence of any past ill-treatment from Tobalis, that there is no reliable evidence of any real intention of Tobalis to seriously harm or kill him other than the Applicant’s own speculations, nor is it accepted that Tobalis can indeed use black magic to harm anyone other than groundless hearsays and rumours, that in any event it was a private land dispute between Tobalis and the Applicant’s father only without 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 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 areas of the country away from his home district in large cities such as Abuja or Lagos where it would be difficult if not impossible for anyone to locate him.

8.  On 26 November 2014 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 26 November 2015 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 21 December 2016 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1] the Board found the Applicant’s claim of fear of being harmed or killed by black magic due to a private family dispute over some farmland between his father and his uncle Tobalis was mainly based on unrealistic, unconvincing and speculative evidence which in turn were based solely on information given to him by his father instead of firsthand information or experience of his own that the Board is not persuaded that the Applicant had been the target of harm or attack by his uncle or anyone that it concluded that his claim for non-refoulement protection failed on all applicable grounds.

10.  The Applicant never sought leave to apply for judicial review of this decision of the Board, and meanwhile on 14 December 2016 the Director in his own initiative in writing invited the Applicant to submit any additional facts which he may consider relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under the HKBOR including right to life under Article 2 (“BOR 2”), and in the absence of any reply or response form the Applicant, the Director by a Notice of Further Decision dated 7 August 2017 also rejected his BOR 2 Claim upon finding that he had failed to provide any fresh and significant facts which will give rise to a possible personal and real risk of his absolute and non-derogable rights under BOR 2 upon his return to Nigeria, that he had failed to establish a personal and real risk of being deprived of his life in violation of BOR 2 right upon his return to Nigeria, and that in any event that on the factual basis of even his own case that his claim simply did not engage the BOR 2 ground.

11.  On 16 August 2017 the Applicant again lodged an appeal to the Board against this Further Decision of the Director, and in which he raised new claims of fear of being harmed or killed by his creditor over some debts and/or violence and killings of Christians in Nigeria perpetrated by Islamic terrorists Boko Haram and Hausa-Fulani Herdsmen if refouled to Nigeria, while he has also married a Hong Kong resident that he wants to remain in Hong Kong until his problems in Nigeria had been resolved.         

12.  The Board did not find necessary to hold a further oral hearing for this appeal of the Applicant, and by a Decision[2] dated 12 October 2020 the Board dismissed his BOR 2 claim upon finding that he had failed to advance any proper grounds for his appeal, that his assertions of fear of harm from any creditor over any debts or from any Islamic terrorists for being a Christian had never been properly raised before or supported by any reliable evidence other than just his bare assertions and speculations and without any personal experience, and that in any event even if his claims based on such assertions were real or true that on the factual basis of even his own case that they would not engage the BOR 2 ground due to its limited scope.       

13.  On 7 January 2021 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date in which he just repeated his assertions that he is afraid to go back to his home country due to violence against Christians by Islamic terrorists but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application.  As such, and in the absence of any error of law or irrationality 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 of this decision of the Board.    

14.  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.

15.  In the Applicant’s case, the Board rejected his BOR 2 claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of having earlier heard him in his oral evidence and his answers to questions raised of his claim under the other applicable grounds which the Board had already rejected, and which the Applicant never sought any legal challenge by way of judicial review.  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, and as correctly found by the Board that on the factual basis of even his own case that the Applicant’s claim simply did not engage the BOR 2 ground due to its limited scope, I do not find any reasonably arguable basis to challenge the findings of the Board.

16.  Furthermore, the fact is that it has also been established by the Director in his earlier decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nigeria, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

17.  In the premises, and having considered both decisions of 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 under all applicable grounds.

18.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.

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

Form CALL-1