MANGERE GRAHAM RIKI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2503/2019

[2025] HKCFI 528

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2503 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 27 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. However, she was absent at the hearing on 15 January 2025. I shall deal with her application of the papers. .

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 72, is a New Zealander. He last arrived in Hong Kong on 25 January 2013 as a visitor and had overstayed since 26 April 2013. The applicant was arrested by the police on 5 March 2014 and he made a non-refoulement claim on 7 March 2014. The claim was made on the basis that, if refouled, he would be harmed or even killed by the British and American intelligence agencies because of his knowledge in forensic banking.

5.  According to the applicant, he left New Zealand in 1995 for UK and started his career in forensic banking. He worked in the forensic division of Midland Bank in UK, during which there was collaboration with intelligence agencies, including Military Intelligence Section 5 (“MI5”). In 2000, the applicant claimed that MI5 set him up because he had extensive knowledge in the financial systems and he was arrested by the UK police for stealing bank instruments. After around 4 years, upon the assistance of a Chinese military general, the UK police dropped all charges against him. Thereafter, he worked in the forensic division of Midland Bank in Switzerland until 2006.

6.  The applicant confirmed that he had never encountered any problem during his stay in New Zealand and when he passed through the New Zealand border. He claimed that his knowledge in forensic information technology made him a target of the British and American intelligence agencies, in which they had attempted to poison him on various occasions. Yet, he had never sought assistance from the authorities in New Zealand because the British and American intelligence agencies run in the country.

7.  Details of the applicant’s story can be found in paragraph 8 of the Director’s Decision dated 20 March 2017 (“the Director’s Decision”).

The Director’s Decision

8.  The Director considered the applicant’s claim in relation to the following risks:

(a)  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 2 risk”);

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

(c)  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”); and

(d)  risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”).

9.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk. The Director found that (i) the absence of past ill-treatment suffered by the applicant indicated a low future risk of harm upon his return to New Zealand [14]; (ii) state protection would be available and there was also no indication that the New Zealand authorities had any adverse interest towards the applicant [15]-[18] and (iii) internal relocation would be viable [19]-[20].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board. The hearing was scheduled on 9 May 2019, for which the applicant failed to attend. As the applicant failed to provide an explanation for his non-attendance within 7 days, the appeal was determined in his absence [5]-[6].

11.  The Board noted that the applicant had been to Mainland China and Hong Kong as early as July 2012, but did not seek any protection until December 2013 when he claimed to have applied for a refugee status from UNHCR, while his non-refoulement claim was not made until 7 March 2014. Such delay was detrimental to his credibility [25]-[29].

12.  The Board found discrepancies and inconsistencies in the applicant’s evidence. Given the applicant’s failure to attend the hearing, no clarification could be sought from him. Accordingly, the Board rejected the applicant’s claimed work history. It was also not accepted that he had been adversely targeted by British and American intelligence agencies due to his expertise in forensic banking and faced threats of serious harm from them [32]-[45].

13.  Based on such findings and given that there was no indication that the New Zealand authorities were involved in the matter while the claimed past ill-treatments also failed to reach the requisite level of severity, the Board rejected the applicant’s claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk [46]-[58], [70]-[89], [93]-[95]. In any event, state protection and internal relocation would also be available according to the country of origin information [59]-[69], [90]-[92].

14.  The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

Application for leave to apply for judicial review of the Board’s Decision

15.  The applicant has filed Form 86 dated 29 August 2019 for leave to apply for judicial review of the Board’s Decision.

16.  In his affidavit in support of his application, the applicant said he did not receive the Board’s notice. Other than that, he did not raised any specific ground to challenge the Board’s Decision.

DISCUSSION

17.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

18.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

19.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“ 13. (1) … …Assessment of evidence and COI 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.”

20.  The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded.

21.  The applicant said that he did not receive the Board’s notice. This explanation has called in question the following issues: he did not say that he had changed his address, therefore the Board’s notice was sent to his last known address and he is deemed to receive the Board’s notice, Re: Ravinder Singh [2023] HKCA 604, Hon Poon CJHC and Cheung JA, 28 April 2023, paragraph 17. Section 37ZD of the Ordinance provides that the Board my take into account the applicant’s non-compliance of its procedures for determination of his credibility.

22.  Obviously, the Board had decided to determine the applicant’s appeal in his absence. This is permissible under section 15 of Schedule 1A of the Ordinance. Up till now, the applicant has not been able to raise any reasons to challenge the Board’s Decision.

23.  There is no reason that the Court should interfere with the Board’s finding of the facts.

24.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

25.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.