RE NWANEWETA CHIGOZIE REMIGIUS

CACV 172/2024, [2024] HKCA 722

On Appeal From [2024] HKCFI 1161

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 172 OF 2024

(ON APPEAL FROM HCAL NO 1519 OF 2019)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the order of Deputy High Court Judge KW Lung (“the Judge”) dated 26 April 2024 ([2024] HKCFI 1161) (“the Leave Decision”) refusing his application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 10 May 2019 (“the Board’s Decision”), whereby the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 18 January 2019.

2.  On 3 May 2024[1], the applicant indicated his consent in writing for this appeal to be disposed of on paper.  Accordingly, we proceed to consider this appeal on paper based on the available materials.

BACKGROUND

3.  The applicant is a national of Nigeria.  He entered Hong Kong as a visitor on 19 June 2004 and has 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 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 USD10,000 from them.  Details of the applicant’s claim were summarised by the Judge at [4] ‑ [8] of the Leave Decision.

4.  By a Notice of Decision dated 18 January 2019 (“the Director’s Decision”), the Director dismissed the applicant’s non‑refoulement claim on all applicable grounds including torture risk[2], BOR2 risk[3], BOR3 risk[4], and persecution risk[5].

5.  The applicant appealed the Director’s Decision to the Board.  By the decision dated 10 May 2019, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision.  The Board’s reasons were summarised by the Judge at [12] ‑ [14] of the Leave 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.”

THE JUDGE’S DECISION

6.  On 4 June 2019, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground of review was advanced in his Form 86 and in his supporting affirmation.  He said it was dangerous for him to return to his country as his life was in danger in his home country.

7.  As the applicant did not request for an oral hearing, the Judge considered his application on papers.  On 26 April 2024, the Judge gave his decision refusing to grant leave to apply for judicial review, for the following reasons:

“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.”

THIS APPEAL

8.  In his Notice of Appeal filed on 3 May 2024, he only stated:

“I AM A NIGERIAN BOY. MY ADJUDICATOR DID NOT GIVE ME CORRECT DECISION. I APPLIED APPEAL FOR J.R. BUT THE JUDGE DID NOT CONSIDER MY PROBLEM AND DID NOT CONSIDER ADJUDICATOR WRONG PROCEEDING.” (sic)

9.  Pursuant to the directions of the Registrar of Civil Appeals dated 3 May 2024, the applicant lodged his written submissions on 17 May 2024.  In those submissions, he reiterated the factual basis and procedural history of his non-refoulement claim.  He further complained that the Judge did not give him an oral hearing and that the points he raised were not considered by the Judge.  He also complained that the Board had committed many errors and that he did not agree with the Leave Decision.

DISCUSSION

10.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(6)]).

11.  Further, the assessment of evidence, COI, 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: Re Kartini [2019] HKCA 1022.

12.  In our view, the applicant’s case is a non-starter. The applicant fails to identify or show with specific particulars any error in the Leave Decision, or raise any viable ground of appeal against the Leave Decision.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6]. His allegations are general and vague without any specific particulars in support.  None of his allegations are proper grounds of appeal.  His appeal must fail on this basis alone.  Further, as the applicant did not request for an oral hearing before the Judge, it was open to the Judge to consider his application on paper.  The applicant has also failed to show any prejudice suffered by him for the lack of an oral hearing.  In any event, we have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.  We see no basis to disturb the Leave Decision.

13.  The applicant’s appeal against the Leave Decision has no merit and is dismissed.