OBI NATHANIEL v. TORTURE CLAIMS APPEAL BOARD

HCAL 2683/2019

[2025] HKCFI 1790

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2683 OF 2019

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;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 34-year-old national of Nigeria who last arrived in Hong Kong on 13 August 2017 as a visitor with permission to remain as such up to 20 August 2017 when he did not depart and instead overstayed, and subsequently surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to Nigeria he would be harmed or killed by some local cult gang for refusing to join them. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised as a Christian in Eastern Igueben, Nigeria. After leaving school with a Diploma of Accounting he worked as a manager in a networks company in his home district until 2010 when he moved with his parents and siblings to Ogba Ikeja in Lagos State.

3.  One day in October 2015 while the Applicant and his relatives and friends were attending his cousin’s wedding in Esan Igueben, some members of the violent cult gang the Badoo Gang known to be extorting money from businesses and threatening local residents came to the venue without invitation and started to eat the food and harassing the female guests, and when the Applicant and other male relatives tried to stop them, they were violently beaten by the gang that many of the wedding guests including the Applicant suffered cuts and bruises all over the body which required medical treatments and some were even hospitalized.

4.  After the incident the Applicant returned to Logos, but soon he started to receive threatening calls from the Badoo gang demanding him to join their gang, and when he refused, some gang members in December 2016 came to his office looking for him, but the Applicant managed to make his escape from the back of the building, and when they could not find him, they then vandalized his office.

5.  Thereafter those gang members continued to come to his office but every time the Applicant managed to make his escape until one occasion in mid-2017 when they were able to get hold of him and took him to a nearby parking lot where they beat him violently until the security guard called the police that those gang members then fled from the scene.

6.  In about mid-2017 his friend Evis came to visit the Applicant in Lagos and stayed over at his home, but after the Applicant was sent by his employer to Hong Kong on 12 August 2017 for business, he was informed by Evis that some Badoo gang members had come to his home in Lagos looking for him, and hence the Applicant was afraid to return to Nigeria and therefore overstayed in Hong Kong, and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 28 August 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 29 October 2018 the Director of Immigration (“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”).

8.  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 those Badoo gang members upon his return to Nigeria as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of to seriously harm or kill him other than to harass him for money, that in any event in the 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 190 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 young adult with working experience to move to other areas of the country away from his home district in other states such as Abuja or Port Harcourt where it would be difficult if not impossible for those Badoo gang members to locate him.

9.  On 8 November 2018 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 17 April 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 26 August 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from the Badoo gang members that caused him to overstay in Hong Kong to seek protection, that even if his account of events were true that there was no reliable evidence of any real intention of to seriously harm or kill him or any real reason for the Badoo gang to specifically target him for recruitment or that there would still be any adverse interest in him after all these years since he left the country, and that in any event according to the relevant COI that the Nigerian police had since already broken up the Badoo gang that it is not accepted that the Applicant will face any risk from the gang upon his return to Nigeria that the Board concluded that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 13 September 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date to which he just attached a copy of the decision 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.

12.  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.

13.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on the credibility of any risk from the Badoo gang for the thorough and detailed analysis and reasoning set out in its decision and with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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, I do not find any reasonably arguable basis to challenge the finding of the Board.

14.  Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm from the Badoo gang even if real is localized in Lagos State and that it is not unreasonable or unsafe for the Applicant to relocate to other part of Nigeria, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.  In the premises, and having considered the decisions of both 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.

16.  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