MBAMBA VICTOR IKECHUKWU v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2829/2019

[2025] HKCFI 3977

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2829 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;

1.  The Form 86 is amended on the court’s own motion.

2.  The applicant’s application for leave to apply for judicial review be dismissed.     

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 25 September 2019, the applicant applied for leave to apply for judicial review (“Leave Application”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 13 August 2019 (“Board’s Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) dated 20 June 2018. (“Director’s Decision”) rejecting the applicant's non-refoulement claim.

2.  In his Form 86, the applicant named the Board as the proposed respondent, and also named the Board as the interested party. As the Director should have been the proper interested party, the Form 86 will be amended accordingly on the court’s own motion.

3.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 12 June 2025.  The applicant attended the hearing in person.  After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Background

4.  The background as taken from the respective decisions of the Director and the Board referred to above can be briefly stated as follows.

5.  The applicant is a national of Nigeria. He arrived in Hong Kong on 5 July 2010 and was permitted to remain as a visitor until 26 July 2010.  However, he did not depart, and overstayed.  On 5 December 2017, he was found undocumented and arrested by police for overstaying and was referred to the Immigration Department.  Upon enquiry, he claimed to have lost his passport in 2010 but did not report the loss. The applicant raised his non-refoulement claim on 9 December 2017.

6.  The applicant’s claim was considered under all applicable grounds i.e. torture risk^[1], BOR 2 risk^[2], BOR 3 risk^[3] and persecution risk^[4] under the USM.^[5]  The claim was based on a fear that if refouled, he would be harmed or killed by the Nigerian police due to his membership and later, youth leadership role, in the Movement for the Actualization of the Sovereign State of Biafra (“MASSOB”).

7.  The applicant is of Igbo ethnicity and is a Christian.  According to the applicant, his family members supported MASSOB, though most of them were not as active as he was. After the Hausa-Fulani led Nigerian government defeated the Igbo people in the Biafra War (1967 – 1970), the government had continually singled out the Igbo people for ill-treatment, deliberate neglect (to the point of causing harm) and denial of adequate health care and resources.  The applicant’s father had fought against the Nigerian government during the Biafra War.

8.  In January 2010, the police stormed a MASSOB meeting attended by around 50 members in the applicant’s district.  Two of the MASSOB members were shot death and 5 others were severely injured.  The police arrested the applicant and 10 other members at the scene. The police detained the applicant at the Onitsha police station for around 2 weeks.

9.  During the applicant’s detention at the police station, he was kept in a dark room where the sanitary environment was very poor. He was given only one meal per day and allowed to drink water only once a day.  Whilst in detention, the police punched and kicked him, and struck him with batons on a daily basis.  They also interrogated him every night between 8 pm and 3 am.  Around the end of January 2010, the applicant was released with a condition requiring him not to participate in meetings, rallies or protests.  The police threatened that the applicant would be killed if he participated in the MASSOB activities in the future.

10.  After his release from detention, the applicant went to the Onitsha Hospital for medical treatment, and stayed therefore for about 3 days to recover from the injuries.

11.  In May 2010, the applicant held a meeting with around 20 MASSOB members in Onitsha.  In the middle of the meeting, police sirens and gunshots were heard.  The applicant saw through the window that several police vehicles and around 20 police officers in protective gears were present outside.  The applicant escaped through the window of the meeting hall, and ran to the nearest bush area via a narrow alley.  He heard gunshots fired behind him. His right leg was hurt by a sharp object when he stumbled during the escape.  He hid in the bush for around 1 hour and 20 minutes.

12.  The applicant subsequently learned from MASSOB that the police killed 3 of their members and several others were injured; and around 20 members were arrested and detained by the police.  The applicant’s wound on his right leg was stitched and treated at a local clinic in Onitsha.  It took around 1 month to recover.

13.  After the incident in May 2010, the applicant did not encounter the police again before he left for Hong Kong in July 2010.

14.  In the Director’s Decision, the Director decided against the applicant’s claim on all applicable grounds. Hence, the applicant’s appeal to the Board against the Director’s Decision.

15.  On 1 August 2019, the applicant attended a hearing before the Board.  At the Board hearing, the applicant gave oral testimony and answered questions from the Board.  

16.  The Board found that the applicant’s evidence was not credible, due in large part to the discrepancies between his testimony at the Board hearing and his prior evidence given to the Director, that the applicant was unable to provide a satisfactory explanation. Having taken into account the applicant’s 7-year-delay in the raising of the non-refoulement claim without a reasonable explanation, the Board found that the applicant was not a witness of truth. It found that the applicant had fabricated the claims in relation to his association with the Biafra movement, both with MASSOB in Nigeria and IPOB in Hong Kong, and the purported problem that he had in Nigeria.  The Board also found that the applicant had concocted his claims about his alleged arrest, the 2 weeks’ detention and torture by the police,

17.  The Board rejected his factual account as untruthful and concluded that there was not a real risk of harm.  Thus, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

Legal principles applicable to judicial review

18.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see 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.

Discussion

19.  In his Form 86 and supporting affirmation, the applicant did not raise any grounds for judicial review. 

20.  At the hearing, this court asked the applicant whether he had any grounds he wished to submit in support of the Leave Application especially that he had not provided any written grounds. The applicant stated that he did not know that he was required to provide any grounds in support. He said that he made the Leave Application solely based on what he knew. He disagreed with the Board’s Decision in relation to the Board’s doubting of his credibility. It was stated that the Board failed to verify the relevant IOC concerning the IPOB when it disbelieved his involvement with Biafra. He stated that he would be arrested if he were to go back home. He also said that he could not relocate to another part of his country.  He said that security in his country was generally bad. He gave an incident that while he was shipping containers of goods to Hong Kong from Nigeria, he was robbed and that he could not go back.  It was also submitted that as an Igbo, he would be marginalized.

21.  It is plain that the applicant has not condescended to any particulars, in the Form 86 or otherwise, as to what basis the Board is said to have acted unlawfully or procedurally unfair in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

22.  The Board’s findings summarized in [16] and [17] above are findings of fact, which the court in a judicial review will not interfere with.

23.  Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above correctly identified the issues, and observed a very high standard of fairness. I am satisfied that the Board was entitled to reject the applicant’s claim after it found that the applicant had fabricated the centerpiece of his account.  The applicant advanced no written grounds at all in support of the Leave Application. At the hearing, despite having alluded to the Board’s failure in considering the relevant COI concerning the IPOB, the applicant provided no particulars as to how the Board had allegedly erred.  I find that it was perfectly open to the Board to come to its conclusion that the applicant failed to discharge his burden of proving the asserted fears and risks.

24.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Orders

25.  The Form 86 be amended on the court’s own motion.

26.  The applicant’s application for leave to apply for judicial review be dismissed.

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