RE PAUL MOORE HYGINUS TOCHUKWU

CACV 116/2023, [2024] HKCA 333

On Appeal From [2023] HKCFI 789

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 116 OF 2023

(ON APPEAL FROM HCAL NO 835 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 11 April 2023 ([2023] HKCFI 789) (“the Leave Decision”) refusing to grant him leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (“the Board”) dated 7 March 2019, whereby the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 7 July 2017.

2.  On 17 April 2023, the applicant indicated his consent in writing for this appeal to be disposed of on paper.  Accordingly, we proceeded 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 30 November 2009 and was permitted to stay until 14 December 2009.  He did not depart and had overstayed since 15 December 2009.  On 10 August 2012, he was arrested by the police for overstaying.  On 15 August 2012, he lodged a torture claim which was rejected on 17 December 2012.  His subsequent petition to the Board was rejected on 8 March 2013.  On 24 March 2014, he lodged a non‑refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by (a) his relatives and local community due to a land dispute, and (b) radical Muslims since he was a Christian.  Details of the applicant’s claim have been summarised by the Judge at [4] to [5] of the Leave Decision.

4.  By a Notice of Decision dated 7 July 2017 (“the Director’s Decision”), the Director dismissed the applicant’s non-refoulement claim on all applicable grounds other than the risk of torture[1], namely, BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

5.  The applicant appealed the Director’s Decision to the Board.  On 7 March 2019, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  The Board’s reasons were summarised by the Judge at [9] ‑ [11] of the Leave Decision:

“9. The Board found that the applicant’s evidence during the screening interview was inherently inconsistent [12]-[19]. It refused to accept the applicant’s explanation for omitting to include the land dispute as part of his claim during the interview [19]. It further considered that the applicant’s immigration history and his conducts were inconsistent with someone who feared a risk of harm [20]-[21]. The Board noted that the applicant provided different answers as to why his uncle took him to Kano State [22]-[24]; and that he was vague as to the reason of leaving Nigeria [25]-[29]. In light of these inconsistencies, the Board refused to accept his claim as credible [30].

10. In addition, the Board found that there was no evidence that he was harmed by the alleged enemies due to the land dispute [33]; that state protection would be available to him [34]-[35]; and that internal relocation was also a viable option [36]-[41].

11. For the aforesaid reasons, the Board rejected the applicant’s claim and dismissed his appeal.”

THE JUDGE’S DECISION

6.  On 26 March 2019, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground of intended review was given by the applicant in his Form 86.  In his supporting affirmation, he only vaguely stated that his problems still persisted in his home country and that he would be in danger if refouled. 

7.  As the applicant did not request for an oral hearing, the Judge considered his application on paper.  On 11 April 2023, the Judge gave his decision refusing to grant leave to apply for judicial review, for the following reasons:

“14. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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).

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

16. 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.’

17. The Board did not accept his evidence and found that state protection and alternative internal relocation are available to him. There is no valid reason to challenge the Board’s Decision.

18. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

THIS APPEAL

8.  In his Notice of Appeal filed on 17 April 2023, the applicant raised the following grounds of appeal:

“THE HIGH COURT DID NOT GRANT MY LEAVE. COURT DID NOT FIND ANY ERROR BUT THERE IS A LOT OF ERROR IN TCAB”. [sic]

9.  Pursuant to the directions of the Registrar of Civil Appeals dated 17 April 2023, the applicant lodged his written submissions on 24 April 2023.  In those submissions, he only reiterated the factual basis and procedural history of his non-refoulement claim and further asserted in general terms that his life would still be in danger in his home country.

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.  The applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, 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].  We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.

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