EKEOMA CHIGOZIE STANLEY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2859/2019

[2025] HKCFI 3982

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2859 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 the Applicant being absent in open court;

1.   The Form 86 be 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 27 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 22 August 2019 (“Board’s Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) dated 20 April 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on applicable grounds.

2.  In his Form 86, the applicant scribbled some illegible words as the proposed respondent and stated “100” as the interested party.  As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, the Form 86 will be amended accordingly on the court’s own motion

Background

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

4.  The applicant is a national of Nigeria. He arrived in Hong Kong on 3 April 2016, and was permitted to remain as a visitor until 17 April 2016.  He did not depart, and overstayed. On 6 May 2016, the applicant surrendered himself to the Immigration Department and raised his non-refoulement claim on 17 June 2016.

5.  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 his paternal uncle due to a dispute relating to land that his father inherited.

6.  According to the applicant, when his paternal grandfather died, his father, being the eldest son, inherited the grandfather’s farmland in accordance with the tradition of their home village. However, in 2009 the applicant’s paternal uncle threatened to kill his father or family because his father refused to allow the uncle to use the farmland for development purposes.

7.  In 2010, the paternal uncle came to the house of the applicant’s father with a group of bodyguards in police uniform. They beat his father and threatened him.  The day after the attack, the applicant and his brother went to the police station to report the attack, but the police said they could not arrest his uncle because he was a senior member of the All Progressives Congress (“APC”). In 2014, when the applicant and his father went to the farmland, suddenly the uncle arrived with around 10 bodyguards.  The applicant and his brother were beaten with guns and knives.  There was a cut on the applicant’s right forearm.  His father went to the police station to complain, but the police officers refused to help, and instead suggested of seeking help from community leaders.

8.  The applicant’s father died in 2015.  Immediately after his father’s funeral, his paternal uncle approached him and threatened to frame him (for a false case) if he did not allow his paternal uncle to develop the farmland.  The applicant feared for his safety, and thus fled to Lagos, where he stayed until 2 April 2016, when he departed from Nigeria.  During his stay in Lagos, he got married and had children.

9.  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.

10.  The hearing of the appeal to the Board was originally fixed for 31 May 2019, but due to the lack of availability of an Igbo interpreter, it was re-fixed for 3 June 2019.  On around 30 May 2019, the Board was informed that its previous two letters had been returned marked “No such person”.  Upon the Director’s enquiry, it turned out that the applicant’s address had been changed.  As the applicant might not have been properly notified of either of the previous hearing dates, the oral hearing was re-fixed for 8 July 2019, and a notice of hearing was sent to the latest address provided to the Director.

11.  The applicant did not appear at the hearing on 8 July 2019. Thus, the Board sent a letter to the applicant by registered post, to notify him of the Board’s intention to hear and determine the appeal in his absence, and to ask him to provide a written explanation for failing to attend the hearing on 8 July 2019, together with documentary evidence supporting such explanation.  The applicant did not reply. The Board subsequently learned that on 30 July 2019, the post office furnished a note indicating that the letter was unclaimed.  The Board thus proceeded to determine the appeal without a hearing.

12.  The Board rejected the claim because the applicant’s injuries did not meet a minimum level of severity, and there was no evidence that the APC is interested in him, and that he had stayed in Lagos without incident.  Thus, the Board found that there was no real risk of harm. The Board also found that state protection appears to be available and that internal relocation would be viable. Therefore, the Board dismissed the appeal and confirmed the Director’s Decision.

Legal principles applicable to judicial review

13.  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 and conclusion

14.  In his Form 86, the applicant did not raise any grounds for judicial review.  In his supporting affirmation, he stated that the matters that caused him to leave his country had not yet been resolved, and that he would face fatal risk if he were to return to his country.

15.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision.  The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[6].

Order

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

17.  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