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HCAL 2349 /2019
[2025] HKCFI 284
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 2349 OF 2019
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BETWEEN
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Hachimou Abdallah |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
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| Before: |
Deputy High Court Judge K.W. Lung in Chambers |
| Date of Judgment: |
6 February 2025 |
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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 19 June 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. I shall deal with his application on 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 48, is a national of Nigeria. He came to Hong Kong on 14 January 2017 as a visitor. He overstayed and surrendered to the Immigration Department on 10 February 2017, claiming that he had lost his passport. On 30 March 2017, he lodged a non-refoulement claim on the basis that, upon refouled, he would be harmed or killed by his uncle Hachimou, Habib and his gansters.
5. According to the applicant, his uncle tried to dispossess the landed property of his father, who had passed away. His uncle had attempted to take over the land from his mother. He was, at the time of his father’s death, in China and was unable to return to Nigeria for his father’s funeral. He learned from his mother that she and the family had left the land. Since then, he did not have further contact with his mother. From his friend in Nigeria, his uncle is still looking for him.
6. The applicant takes the view that state protection will not be available to him as the police is corrupt and internal relocation is not viable as his uncle may locate him.
7. Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 19 September 2018 (“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 application for the reasons that (i) from his experience, his risk of being harmed or killed if he returns to Nigeria is low [11]-[14]; (ii) state protection will be available to him [12]-18]; and (iii) internal relocation is viable [19]-[22].
The Board’s Decision
10. The applicant appealed the Director’s Decision to the Board. On 19 April 2019, the Board conducted a hearing. The applicant had given oral evidence before the Board.
11. Having considered the evidence, the Board found:
“38. …the applicant’s evidence is very scant in relation to threats made by his uncle directly towards the applicant, …
41. Secondly, the applicant’s evidence is internally inconsistent. …
44. … the Board would not find it unduly harsh for the applicant to relocate within Niger and support himself. …”
12. 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
13. The applicant has filed Form 86 dated 14 August 2019 for leave to apply for judicial review of the Board’s Decision.
14. In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.
DISCUSSION
15. 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).
16. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
17. 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.”
18. The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decision.
19. There is no reason that the Court should interfere with the Board’s finding of the facts.
20. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.
DISPOSITION
21. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.
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(K.W. Lung) |
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Deputy High Court Judge |
The applicant was unrepresented.
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