METU MALACHY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1915/2019

[2025] HKCFI 144

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1915 OF 2019

_____________

BETWEEN

_____________

_____________

JUDGMENT

_____________

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 12 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 asked for a hearing. He appeared before the Court on 16 December 2024.

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 52, is a national of Nigeria. He came to Hong Kong as a visitor on 5 August 2015. He overstayed and was arrested by police on 20 October 2015. By written representation of 6 November 2015, he lodged non-refoulement claim to the Director of Immigration Department (“the Director”). His claim is on the basis that, if refouled, he will be harmed of killed by his creditor called Ignatus Ebirim (“Ignatus”), who is a member of Boko Haram, a terrorist organization in Nigeria.

5.  According to the applicant, he was a trader, doing import and trader of auto parts, electronic goods and air-conditioners in Lagos, Nigeria. In 2004, he borrowed US$80,000 from Ignatus to expand his business. In June 2015, he made a routine transaction payment of US$60,000 to his Hong Kong agent for some goods. However, the Nigerian government banned the goods to be imported and it seized the goods. He was therefore unable to repay the loan to Ignatus, who brought his underlings to his premises to demand repayment. Ignatus disclosed to him that he was a member of Boko Haram and threatened him that if he did not repay the loan, he would kill him. Ignatus kidnapped his father and killed him. He had reported the matter to 2 police stations, which turned him down upon knowing that Boko Haram was involved. In July 2015, Ignatus’s people ambushed him on the street and assaulted him with cuts on his body. He has also lost 2 teeth. He reported to the police station again, with the same result as before. In August 2015, he fled Nigeria for Hong Kong. In Hong Kong, his friend told him that Ignatus was still looking for him. Details of his story are set out in paragraph 7 of the Notice of Decision dated 26 October 2018 (“the Director’s Decision”).

The Director’s Decision

6.  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”);

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) his accounts of the loan are incredible [11]; state protection will be available to him if he returns to Nigeria [12]-[18]; and internal relocation is viable [19]-[20].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 29 April 2019, the Board conducted an oral hearing for his appeal and he had given evidence at the hearing.

9.  Having considered the evidence, the Board dismissed his appeal for the reasons below:

“48. While I accept that the Appellant borrowed money for his business in Nigeria, I have some concerns about the Appellant’s account of the loan. …

49. At the hearing before me, the Appellant raised matters he had not mentioned before, …

51. The fact that the Appellant’s account of events has varied so significantly over time and that he shifted and changed his evidence when questions were asked of him at the Board hearing seriously undermined his credibility.

55. Considering all the evidence, I do not find the Appellant to be a credible witness. I find that the Appellant has fabricated and concocted his evidence to advance a claim for non-refoulement protections and that he was not harmed or threatened with harm by a man named Ignatus who is a member of Boko Haram because of a debt. I also find that he would therefore not be at risk of harm from Ignatus should he return to Nigeria. I further find that there is not a real risk he would be subjected to serious harm because he is a Christian or from Boko Haram should he return to Nigeria.”

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

10.  The applicant has filed Form 86 on 8 July 2019 for leave to apply for judicial review of the Board’s Decision.

11.  In his affidavit in support of his application, the applicant enclosed the Hearing Bundle without specifying any reasons to challenge the Board’s Decision.

DISCUSSION

12.  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).

13.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant complained that the adjudicator did not believe his evidence and asked the Court to review the Board’s Decision.

14.  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.”

15.  The Board, for the reasons given paragraph 9, found that the applicant’s evidence was not reliable. There is no valid ground from the applicant to challenge the Board’s Decision.

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

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

CONCLUSION

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