EMEZUO CHUKWUDI OZOEMENA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 41/2025, [2025] HKCA 670

On Appeal from [2025] HKCFI 145

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 41 OF 2025

(ON APPEAL FROM HCAL NO 2187 OF 2019)

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J U D G M E N T

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Hon Cheng J (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K. W. Lung (“Judge”) on 21 January 2025[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 19 July 2019. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 3 February 2017 rejecting the applicant’s non-refoulement claim. There was an earlier decision of the Board on 16 November 2016 dismissing the applicant’s appeal against the Director’s decision of 30 December 2014 in relation to torture risk, BOR 3 risk and persecution risk. Although the applicant did not apply for leave to apply for judicial review of this decision of the Board, [2] the Judge took it into account as well as the underlying facts are the same.

Background

2.  The applicant is a national of Nigeria born in 1973. He last entered Hong Kong as a visitor on 2 December 2008 and was permitted to stay until 3 January 2009. However, he overstayed and was subsequently arrested by the police on 3 June 2009. The applicant raised a torture claim application on 9 June 2009 and his torture claim form dated 16 January 2014 and supplementary non-refoulement claim form dated 10 September 2014 were submitted to the Immigration Department. His claim was made on the basis that if he returned to Nigeria, his friend and creditor (Natanel) would harm or kill him due to his inability to repay a loan. The factual background of the applicant’s claim was set out at [3] to [10] of the Board’s decision dated 16 November 2016.

3.  By notice of decision dated 30 December 2014, the Director assessed the applicant’s claim in relation to three applicable risks and determined it against him. Those grounds were BOR 3 risk,[3] persecution risk,[4] and torture risk.[5]

4.  By letter dated 10 January 2017, the Director invited the applicant to submit any additional information relevant to all applicable grounds, including BOR2 risk, but the Director did not receive any reply from the applicant in this regard. By notice of further decision dated 3 February 2017, the Director assessed the applicant’s claim in relation to BOR 2 risk[6] based on information previously received by the applicant and determined it against him.

5.  On 9 January 2015, the applicant appealed to the Board against the Director’s decision dated 30 December 2014. An oral hearing was held on 20 August 2015, during which the applicant gave evidence and answered questions from the Board and he was legally represented. At the oral hearing, the applicant submitted further details about the loan and his creditor, such as why his loan interest rate of 2.85% p.a. was much lower than that of the deposit interest rate of 12% p.a. in Nigeria and how Natanel was his close friend and a successful businessman. The Board found the applicant’s evidence to be unreliable and his credibility to be extremely low, because the applicant claimed that he lost a large sum of money and passport in a park in Hong Kong but chose not to report to the Hong Kong police nor to the Nigerian Consulate, the alleged threatening behaviour and actions of Natanel was highly inconsistent with that of a successful businessman (who was also a close friend) as claimed by the applicant, the applicant suspected that Natanel took part in the disappearance of his sister and his uncle but claimed that Natanel had only threatened him and not threatened him about kidnapping his sister or his uncle specifically (contrary to the purpose of leveraging repayment of the loan), and the applicant did not change his phone number to avoid Natanel’s threatening telephone calls.

6.  The Board proceeded to consider the risk of harm faced by the applicant if he was refouled to Nigeria. It found there was in fact no real risk of harm if the applicant returned to Nigeria, because the alleged risk of harm did not reach the minimum level of severity, his dispute was of a private nature without state involvement, state protection from the police would be available, and internal relocation to another big city in Nigeria would be a viable option. In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to Nigeria. By its written decision dated 16 November 2016, the Board dismissed the applicant’s appeal in respect of the three applicable grounds of BOR 3 risk, persecution risk, and torture risk and confirmed the Director’s decision dated 30 December 2014.

7.  On 7 March 2017, the applicant separately appealed to the Board against the Director’s decision dated 3 February 2017 out of time. The Board considered the applicant’s appeal/petition on paper and allowed the applicant’s late filing, despite the applicant’s weak explanation for the delay. As the applicant failed to provide any further or additional information aside from a bare assertion of a “fresh threat” from Natanel, the Board assessed the claim based on information and facts previously relied on by the applicant. Although the Board rejected the applicant’s claim under the other applicable risks due to lack of credibility, it considered the applicant’s claim under BOR2 risk in any event. However, the Board found that the applicant was never harmed or ill-treated in Nigeria to a requisite level, that state protection would be available to him, and that internal relocation in Nigeria would be a viable option.

8.  In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to Nigeria. By its written decision dated 19 July 2019, the Board dismissed the applicant’s appeal in respect of BOR2 risk and confirmed the Director’s decision dated 3 February 2017.

The Judge’s decision in the court below

9.  On 1 August 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision dated 19 July 2019. He did not specify any ground for judicial review in the Form 86. In the accompanying affirmation, he annexed his torture claim form, supplementary claim form, screening interview note dated 28 November 2014, the Director’s decision dated 30 December 2014, a document to the Director entitled “Grounds of Appeal”, the Board’s decision dated 19 July 2019 and a document to the court entitled “Grounds for judicial review - leave to appeal”. The applicant’s grounds included that the Board’s assessment of the applicant’s claim in relation to BOR2 risk was unreasonable because the Board failed to take into account that Natanel was influential and could take advantage of the corrupt system, he would not be protected due to the state and the authorities being susceptible to bribes, many victims would be killed due to unpaid loans in Nigeria so the applicant believed he would be as well, the Board failed to analyse Natanel’s new threat appropriately, the Board failed to recognise that the country of origin information (“COI”) corroborated with the applicant’s concerns for poor security in Nigeria, and the Board wrongly applied the burden of proof of beyond reasonable doubt to the applicant.

10.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing. On 21 January 2025, the Judge issued his decision, refusing to grant leave to apply for judicial review. The reasons were set out in [19] to [24] of the Judgment as follows:

“ 19. 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).

20. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

21. 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.’

22. Those grounds under paragraph 17 are his bare assertions or opinions without any evidence in support. As such, they are not valid to challenge the Board’s Decisions[1].

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

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

Appeal to this Court

11.  On 3 February 2025, the applicant filed his Notice of Appeal against the Judge’s decision. In his accompanying affirmation, his stated grounds of appeal were, essentially, that the Director and the Board failed to consider his case properly in relation to BOR2 and BOR3 risks, that the Director, the Board and the court had assessed the evidence and the COI in a manner leading to decisions exhibiting errors of law, procedural unfairness, and irrationality, that the decision was unreasonable, and that the Board failed to consider his human rights.

12.  The applicant lodged written submissions in which he stated that the Board’s decision rejecting his claim amounted to procedural unfairness and the Judge failed to consider the overwhelming evidence in his favour. He further invited this court to find findings of fact on the evidence adduced by him.

13.  At the hearing, the applicant stated that he adopted the matters in his written materials filed with the court, and reiterated that his home country was corrupt and did not protect anyone. In addition, he sought to rely on an article dated 19 June 2025, which appeared to have been written by an entity appealing for others to sign a petition and raise funds, commenting on what was said to be recent attacks on Christian communities in Nigeria; the applicant said that this showed that protection in his country for persons like himself was inadequate and relocation was not an option.

Discussion

14.  In assessing the merits of the appeal, we have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. In particular, the role of the Court in an application for judicial review is not to provide a further avenue of appeal. 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. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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. It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

15.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because the applicant’s claim lacked credibility. Even taking the applicant’s claim in the best light, the Board considered that the alleged risk of harm did not reach the requisite level of severity, that this was a private dispute without state involvement, that state protection would be available to the applicant and that internal relocation would be a viable option. These are findings of fact open to the Board based on the evidence it received and for the reasons it gave in both its decisions. The applicant has failed to show any reasonably arguable ground for saying that the Board’s decision should be impugned due to public law errors.

16.  Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision. We should further note that although the applicant specified that he sought judicial review of the Board’s decision dated 19 July 2019 in the Form 86, the Judge had in fact considered both of the Board’s decisions as they rely on the same set of facts.

17.  As regards the article which the applicant sought to rely on at the hearing, we decline to admit it as new evidence, as the applicant has not satisfied the three conditions established in Ladd v Marshall [1954] 1 WLR 1489 for the admission of new evidence. In particular, the applicant fails to show that the evidence would or might, if believed, have a very important effect on the Judge's decision. Even if the article were admitted, it would not add anything of substance to the present appeal. There are also no exceptional circumstances in the present case to justify exercising our residual discretion to admit the article notwithstanding the non-satisfaction of the Ladd v Marshall conditions.

18.  We are therefore not satisfied that there is any error in the Judge’s decision.

19.  The applicant’s appeal is accordingly dismissed.