IKWUNNE EKENE MOSES v. TORTURE CLAIMS APPEAL BOARD

HCAL 3900/2019

[2025] HKCFI 1276

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3900 OF 2019

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant or counsel in open court;

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

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated 31 December 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board ("the Board") dated 13 December 2019 (“the Board's Decision”).  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003900_2019_files/the_Board's_Decision.pdf

2.  The Board found that the applicant failed to establish his claims on any of the applicable grounds under the Unified Screening Mechanism (“the USM”), and affirmed the decision of the Director of Immigration (“the Director”) dated 20 November 2018.

The applicant’s case

3.  The applicant’s case (as detailed in the Board’s Decision) can be briefly summarised as follows:-

(1)   The applicant is a male Nigerian national born in Lagos, Nigeria on 16 December 1984.  He did business with his business partner, Mr Onwediwe (“the Creditor”), for 3 years.

(2)   On 6 April 2013, the applicant travelled to Hong Kong for business and brought US$10,000 (“the Sum”) with him.  He claimed that he lost his passport and the Sum in Hong Kong.

(3)   The applicant overstayed in Hong Kong and was arrested by the Hong Kong police for overstaying on 6 May 2013.

(4)   The applicant claimed for non-refoulement protection under the USM on all the applicable grounds, namely:-

(a) risk of torture under Part VIIC of the Immigration Ordinance;

(b) risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance;

(c) risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance; and

(d) risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.

(5)   The applicant alleged that if refouled, he would be harmed or killed by the Creditor.  The Creditor believed that the applicant had betrayed him, and called the applicant and the applicant’s family many times threatening to kill the applicant.  Although the applicant’s family helped the applicant to repay the Creditor the Sum in full, the Creditor was still not satisfied.  The applicant’s parents told the applicant that the Creditor is still chasing for him and wants to kill him if he returns to Nigeria. 

(6)   The Director rejected the applicant’s claims on 20 November 2018, and the applicant appealed/petitioned against the Director’s decision on 3 December 2018.

Grounds for judicial review

4.  The applicant is required to identify clearly the grounds for his intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

5.  The applicant did not advance any ground for his intended judicial review in Form 86, but in his supporting affirmation dated 31 December 2019, he gave two grounds as follows:-

(a) If all his grounds are unconsiderable [sic], then he has a new ground, ie he is married to a Hong Kong lady and has a baby boy aged 5 months and 3 weeks; and

(b) The Board did not investigate.

Oral hearing

6.  The applicant requested for an oral hearing of the Leave Application, which was fixed on 7 March 2025.  At the hearing, the applicant appeared in person and was assisted by an interpreter in the applicant’s own language. 

7.  The applicant told this court that he has a wife and two sons aged 6 years and 4 years respectively in Hong Kong (the second son was born after the Board’s Decision).  He said he wants to remain in Hong Kong because if he is allowed to stay here as dependent, he can work and stay with the family.  The Director rejected his two previous applications for dependency status and his third similar application is still pending.  He said that the information about his wife and sons were not raised before the Board because the Board did not ask him about them.

8.  It seems that the applicant is relying on what he told this court at the oral hearing in support of the two grounds mentioned in his supporting affirmation.  However, this court did tell the applicant at the hearing that his application for dependency status is different from his claims for non-refoulement protection.

Discussion

9.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s Decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration[2018] HKCA 524).

10.  In Po Fun Chanv Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success. 

11.  As aforesaid, the fact that the applicant has a wife and 2 sons here in Hong Kong may be relevant to his application for dependency status, but it is not relevant to his application for non-refoulement protection.  Thus, the so-called “new ground” raised by the applicant is not a ground for the claims for non-refoulement protection, nor for the intended judicial review.

12.  In fact, the Board in the Board’s Decision already said that consideration had been given to the applicant’s submission that he had a wife (who is a Hong Kong resident) and a baby boy (aged 3 months at that time), and the applicant agreed at the hearing that it had nothing to do with the centerpiece of his claim.  The Board found that this was not related to his fear from the Creditor and could not advance his claim further.

13.  Thus, it is not the case that the Board was unaware of the applicant’s family here in Hong Kong, but the Board found that it was irrelevant to the applicant’s non-refoulement claim, which the applicant also agreed.  The applicant’s first ground must fail.

14.  In respect of the second ground, the applicant wrote the following in his supporting affirmation:-

“The Board finally say “the evidence adduced by the Appellant disclose no substantial grounds for so beliving. I find that this claim for protection from refoulement under this ground fails.” But actually the Board did not investigate and normaly he have to cancel so he write this”. [sic]

15.  It is not clear in what way the Board had allegedly failed to investigate.  Presumably, it could be related to the information relating to his family in Hong Kong.  However, as aforesaid, the Board was aware of his wife and first son’s existence, but found that information irrelevant. 

16.  In fact, at the start of the hearing before the Board, the applicant confirmed the truth and correctness of all the evidence contained in the bundle and he had no new grounds or points of fear to his claim save as to those already adduced.  If there were anything further that the applicant wanted the Board to consider, he could have raised the matter to the Board during the hearing.  There is no reason to suggest that the Board failed to investigate when the applicant himself did not raise anything further. 

17.  Furthermore, the Board’s Decision contains a thorough analysis of the law and facts in relation to the applicant’s claim, which formed the basis for the conclusion thereof.  This court does not find anything which suggests that the Board had failed to investigate into anything at all.  Thus, the applicant’s second ground must also fail.

18.  In fact, the Board re-assessed the applicant’s claim on all the applicable grounds under the USM.  After due consideration of the law and all the available evidence, the Board accepted that the applicant lost the Sum during his business trip in Hong Kong, and the Creditor uttered verbal threats to the applicant and his family that the applicant would be killed upon his return to Nigeria.  These findings matched the applicant’s case.

19.  However, the applicant also told the Board that the Creditor did not contact him after he changed his telephone number in 2013 or his family anymore after his family compensated the Sum to the Creditor in full in 2017.  The applicant admitted that it was only his guess that the Creditor still wanted a revenge.  The Board found that the behavior of the Creditor in the past showed no real intention to cause any serious harm to the applicant, and there was no evidence that the Creditor had a real intention to locate him so as to harm him personally, especially the Sum had already been repaid to him in full.  Hence, the Board concluded that there was no well-founded risks for the applicant, and the applicant was not entitled to non-refoulement protection.  It is clear that the Board is entitled to reach its conclusion based on the applicant’s own admissions.

20.  In assessing the availability of state protection, the Board had referred to various objective and reliable country of origin information for the applicant’s country from different sources.  The Board considered that the applicant should be able to obtain assistance from state authorities if he needed it.  The Board also considered it unnecessary to assess the viability for the applicant’s internal relocation since there was no real or substantial risk of harm, ill-treatment, torture or arbitrary deprivation of life.  The applicant also failed to establish a real risk of persecution in his home area.

21.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof.  The Board also correctly identified the issues and observed a very high standard of fairness.  This court could detect no error of law, procedural unfairness or irrationality in the Board’s Decision.

22.  The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. Thus, the intended judicial review has no realistic prospects of success at all, and the Leave Application must be dismissed.

Conclusion

23.  For reasons aforesaid, the Leave Application is 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