NWANEWETA CHIGOZIE REMIGIUS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1519/2019

[2024] HKCFI 1161

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1519 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.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 10 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.

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 50, is a Nigerian. He entered Hong Kong as a visitor on 19 June 2004 and overstayed since 4 July 2004. He was arrested by the police on 22 March 2018 for possession of an identity card of another individual and for overstaying. The applicant was sentenced to imprisonment of 16 months as a result.  On 4 September 2018, the applicant made a non-refoulement claim. The claim was made on the basis that, if refouled, he would be harmed or even killed by the head of the Amaji community (“Mr Izuka”) because he took USD 10,000 from them.

5.  According to the applicant, his home village is part of the Amaji community. His father worked as the community’s treasurer. In June 2004, the applicant needed money to expand his garment business and his father secretly gave him USD 10,000 from the community (“the community money”). The applicant then came to Hong Kong with the community money together with USD 4,700 of his own money to import garments. However, all his money was stolen four days later. He did not report the theft to the police, but only to his father.  Subsequently, Mr Izuka held the applicant’s father liable and ordered him to return the community money by 31 December 2004, failing which he would be killed.  One day in January 2006, the applicant’s father was given a customary drink during a community meeting, after which he became sick and threw up white foam and blood. A doctor said he had been poisoned and he later died on the same day. The applicant’s mother reported the matter to the police, but they refused to intervene in a community matter. His mother did not dare to confront the community alone and no further action was taken.

6.  The applicant maintained contact with his mother after his arrival in Hong Kong. She told him that the Amaji community kept pressing her by verbal threats and insults in order to get the community money back.

7.  The applicant was of the view that he could not seek help from the police because they were reluctant to help when his mother reported his father’s death to them. The applicant also considered internal relocation within Nigeria not viable because the applicant’s theft of the community money had been reported to the police, so that he would be arrested upon his return.  The applicant feared that he would be handed over to the community and be poisoned like his father. 

8.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 18 January 2019 (“the Director’s Decision”).

The Director’s Decision

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

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

b.  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”);

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

d.  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”).

10.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that apart from hearsay evidence, there was no evidence to support the applicant’s claim that his father’s death was connected to the community/Mr Izuka or he would be handed over to the community if he returned. The applicant’s substantial delay in making a non-refoulement claim also undermined his credibility as a genuine claimant [11]-[14].

11.  In any event, (i) state protection will be available to him upon his return [15]; (ii) internal relocation is viable [16] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [17]-[22], Persecution risk [23]-[27] or Torture risk [28]-[30].

The Board’s Decision

12.  The applicant appealed the Director’s Decision to the Board. On 3 May 2019, the Board conducted an oral hearing.  

13.  The Board accepted the applicant’s evidence in relation to the obtaining and lost of the community money, given that they were relatively consistent [39]-[40].  However, the Board found the applicant’s evidence regarding the claimed threats against his parents vague and limited.  They neither accepted that his father was poisoned, nor that his mother was facing daily threats or other serious forms of harassment.  The applicant’s failure to make a non-refoulement claim despite being in Hong Kong for 14 years also damaged his credibility. Based on such findings, the Board was not satisfied that the applicant faced a real risk of harm from the Amaji community/Mr Izuka [41]-[46].  In any event, relocation was viable and there was also no evidence suggesting that the applicant would be arrested by the police upon return and handed over to the Amaji community [47]-[52].

14.  The Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk [9]-[14], [54], BOR 2 and BOR 3 risk [15]-[19], [55]-[56] or Persecution risk [20]-[25], [57].  It therefore dismissed the applicant’s appeal and confirmed the Director’s decision.

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

15.  The applicant has filed Form 86 dated 4 June 2019 for leave to apply for judicial review of the Board’s Decision.

16.  In the applicant’s affidavit in support of his application, he said it is dangerous for him to return to his country as his life is in danger over there.

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 Decisions 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.  There is no valid reason from the applicant to challenge the Board’s Decision.

21.  There is no reason that the Court should interfere with the Board’s finding of the facts. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

22.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I 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