OFOR IKECHUKWU MICHAEL alias RABE LAWAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 371/2023, [2024] HKCA 659

On appeal from [2023] HKCFI 2716

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 371 OF 2023

(ON APPEAL FROM HCAL NO 1227 OF 2019)

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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 7 November 2023, Deputy High Court Judge K W Lung refused to grant leave for the applicant to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1]. The applicant filed a Notice of Appeal against the judge’s decision on 16 November 2023.

2.  The applicant is a national of Nigeria. He last entered Hong Kong as a visitor on 15 February 2015 and subsequently overstayed. He was arrested by the police on 29 July 2015. On 1 August 2015, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by members of the Black Axe group because he witnessed a shooting incident that led to the imprisonment of the Black Axe members.

The Director’s decision

3.  By a Notice of Decision dated 16 November 2017, the Director of Immigration (“the Director”) rejected the applicant’s non‑refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

4.  The Director considered that the alleged ill-treatments by the suspected Black Axe members have not attained the requisite minimum level of severity even if they are true. Besides, the Director found there is no objective evidence to show that the applicant will face any foreseeable real and personal risk of harm from the Black Axe members upon his return to Nigeria. The Director also held that the availability of state protection and internal relocation alternatives in Nigeria further lowers or negates the perceived risk.

The Board’s decision

5.  The applicant’s appeal against the Director’s decision was heard before the Board on 31 January 2018. The Board had considerable doubt on the veracity of the applicant’s claims because of the significant inconsistencies in his accounts. His description of the clothing worn by the Black Axe members did not accord with the known information of the attire of the Black Axe members. The applicant also failed to adduce reliable corroborating evidence even after he had been given an extension of time to do so. The Board also found the applicant’s claim that the Black Axe members were coming to get him in Nigeria to be far-fetched. The Board did not accept that state protection would not be available to the applicant upon his return to Nigeria and was satisfied that he would be able to seek safety elsewhere in Nigeria in any event. The Board concluded that the applicant failed to establish his claim on all applicable grounds and rejected the appeal on 28 February 2019.

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 7 May 2019 to seek leave to apply for judicial review against the decision of the Board. In his supporting affirmation and the written submissions, he reiterated the problems he faced in Nigeria without stating any grounds to challenge the Board’s decision.

The judge’s decision

7.  DHCJ K W Lung dealt with the leave application on paper as the applicant did not request an oral hearing. The judge held that the applicant did not have any valid ground to challenge the Board’s decision. The judge also found no error of law or procedural unfairness in the Board’s decision, and the findings of the Board were not Wednesbury unreasonable or irrational. As there was no realistic prospect of success in the applicant’s intended judicial review, the judge dismissed the leave application on 7 November 2023.

Grounds of appeal

8.  The applicant has not stated any grounds of appeal in his Notice of Appeal. In his written submissions, he only stated his case concerning the Black Axe group and his problems in Nigeria but did not put forward any grounds to challenge the judge’s decision.

9.  The applicant has filed a written consent to the disposal of his appeal on paper without an oral hearing. Directions were given by the Registrar of Civil Appeals on 16 November 2023 requiring the applicant to lodge written submissions. The applicant has lodged written submissions as directed.

Analysis and disposition

10.  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.

11.  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge. In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

12.  The applicant has not pointed out any error of law or procedural unfairness in the judge’s decision. There are no viable grounds of appeal and no basis to interfere with that decision. We dismiss this appeal as it is devoid of merits.