BABATUNDE MICHAEL BLESSING v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1854/2019

[2025] HKCFI 1087

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1854 of 2019

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

Following:

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Mr Babatunde Michael Blessing (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 31 May 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 25 October 2017 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant and the Claim

2.  The Applicant is a Nigerian. He was born on 8 September 1980 in Osun State, Nigeria. His religion is Christian. He received around 15 years of education in Nigeria and had 13 years of working experience.

3.  He came to Hong Kong in January 2014 to study Mandarin but did not leave Hong Kong by 12 February 2014 when his visa expired.

4.  He claimed that he was invited by other Muslims to convert to Islam when he was studying in a grammar school from 1996 to 2000. They used weapons, such as knives and cutlass, to hurt him and threatened him to make a decision on whether he would believe in Islam. They had also slapped and punched him and threatened to kill him if he did not make the decision to convert to their faith. The Applicant’s parents made reports to the police but there was no follow-up action taken by the police.

5.  The Applicant claimed that from 2010 to 2012, the Boko Haram, an Islam terrorist group, kept coming to his home in Ibandan and threatened him to make a decision on whether he would follow Islam. When he refused, they beat and punched him and told him to think about it again. They threatened to kill him if he did not follow Islam. He was injured. He made report to the police but no action was taken by the police.

6.  In October 2010, the Boko Haram carried guns to the university in which the Applicant was studying (“University”). They suddenly fired a shot in the air. The Applicant escaped from the scene and was not injured. He reported to the police. The police imposed a curfew at night for one month.

7.  In February 2011, the Boko Haram people came to the University with guns again. They grabbed the Applicant out of the classroom. They tied up his hand, beat him and used knives to hurt him. He was kept outdoors for almost 24 hours before he was released. He received medical treatment in a hospital for 2 weeks. He reported to the police and there were more police at the University for about a month afterwards.

8.  In July 2012, the Boko Haram people came to his home destroying his house and his properties when he was in Gambia for business. After he returned to Nigeria, he made report to the police but no follow-up action was taken by the police.

9.  In November 2013, when the Applicant was in a church in Ibadan, some Boko Haram people suddenly fired shots at the church and killed many believers. The Applicant escaped from the scene without being hurt.

10.  In early February 2014, when he was studying in Hong Kong, he received a phone call from his sister telling him that some Boko Haram people dropped a bomb at his house in Ibadan and killed his parents. His sister told him that it was dangerous for him to return to Nigeria and he should stay in Hong Kong. Thus, he overstayed in Hong Kong after his visa expired.

11.  His sister informed him in 2017 that the danger still existed and his friend told him that the Boko Haram did not give up and kept looking for him and other Christians.

12.  The Applicant claimed that he faced the danger of being harmed or killed from the Muslim community, the Boko Haram and the Fulani Herdsmen if he returned to Nigeria.

13.  By a written representation of 15 February 2014, the Applicant lodged the Claim. The Director had considered the Claim on all applicable grounds under the unified screening mechanism (“USM”), namely:

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

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”) (“BOR 2”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“Refugees Convention”).

14.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

15.  On 3 July 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed his supporting affidavit on the same day (“Supporting Affidavit”). In the Form 86, the Applicant named the Board as the proposed respondent and the Director as the interested party.

Legal principles applicable to judicial review

16.  In a judicial review, the court does not step into the shoes of the decision makers.

17.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI [i.e. country of origin information] 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: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

18.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

19.  The Applicant failed to attend the court hearing scheduled for 6 February 2025 despite a notice of hearing dated 13 January 2025 having been sent to him and not being returned. In fact, the Applicant had also failed to respond to a letter dated 14 November 2024 previously sent to him by the court inviting him to send his submissions to the court. As such, I decided to proceed to deal with this application according to papers already placed before the court.

20.  In the Form 86, the Applicant wrote: “The Decision is wrong. Because I was not arrested by police. I went to police station by myself”.

21.  In the Supporting Affidavit, the Applicant deposed that:

“According to the decision background No 2, state that I was arrested by the police.

The statement is wrong. I was not arrested I went to police station by myself to explain my problem to them.”

22.  The Applicant annexed a statement to the Supporting Affidavit reiterating that he received a call when he was in Hong Kong that his parents were killed by the Boko Haram.

23.  The fact that the Applicant might have surrendered himself voluntarily to the police on 13 February 2014 was not inconsistent with the fact that he was arrested by the police at the police station because of suspected offence of remaining in Hong Kong illegally. This is not a ground for seeking judicial review of the Board’s Decision.

24.  The Applicant testified at the hearing before the Board. The Board found his evidence to be incredible and unreliable. (See §§14-84 of the Board’s Decision.) The Board also found that there was no reasonable explanation for his inability to give credible evidence.

25.  The Board did not accept that the Applicant had ever encountered the Boko Haram, the Islamic militants or the Fulani Herdsmen. The Board rejected all the claimed past incidents of the Applicant and found that the Applicant fabricated the entire case in an attempt to prolong his stay in Hong Kong. The Board found that there was no real risk of the Applicant facing harm from the Boko Haram, the Fulani Herdsmen, the Islamic militants, the Muslims or anyone for any reasons if he were returned to Nigeria.

26.  The Board went on to find that the Claim should also be dismissed on the ground that internal relocation within Nigeria to states in south west and south east Nigeria, was viable. (See §§86-93 of the Board’s Decision.)

27.  The Applicant’s allegation that his parents were killed by the Boko Haram in a bomb attack in 2014 was known to both the Director and the Board. Such allegation had been considered by the Board before the Board made the Board’s Decision.

28.  As pointed out in the Nupur Mst (supra) case, assessment of evidence, country of origin information materials, risk of harm, and viability of internal relocation were primarily within the province of the Board. The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board.

29.  Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the relevant grounds under the USM for seeking non-refoulement protection; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

30.  In disputing the findings on assessment on evidence, credibility and risk of harm, the Applicant sought to challenge the findings of fact of the Board which is not permissible in a judicial review unless in making such findings there were errors of law or procedural unfairness or irrationality. I find none in this case.

31.  No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affidavit. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

32.  The Board found that there were no substantial grounds to believe that the Applicant faced a real risk of being subjected to torture referred to in section 37U(1) of the Ordinance or ill-treatment stipulated in the BOR 3. The Board did not accept that the Applicant had a well-founded fear of persecution for any of the reasons referred to in Article 33 of the Refugees Convention. The Board also found that there were no grounds to believe that the Applicant faced a risk of being arbitrarily deprived of his life in violation of the BOR 2.

33.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable and has no realistic prospects of success.

Conclusion

34.  In the premise and having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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