FELIX KINGSLEY CHISOM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3127/2019

[2025] HKCFI 2994

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3127 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 26 September 2019 of the Torture Claims Appeal Board dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant asked for a hearing. He appeared before the Court on 13 June 2025.

The applicant

3.  The applicant, aged 45, is a national of Nigeria. He came to Hong Kong as a visitor on 17 May 2018. He overstayed since 25 May 2018 and surrendered to the Immigration Department. He lodged his non-refoulement claim by written signification dated 9 October 2018 on the basis that, if refouled, he will be harmed or killed by Rochas, the state governor, and his associates due to land dispute.

4.  According to the applicant, his family owned a piece of land for farming for a long time. The ownership was by way of local custom. On 24 November 2016, Rochas and his people occupied the land and cleared the plants. He and his father protested. Rochas and his people came to the land with weapons and pistols and they finally disposed them of the land on 27 December 2016. He was afraid that Rochas would harm or kill him, therefore, he left Nigeria for Hong Kong in May 2018.

5.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 27 March 2019 (“the Director’s Decision”).

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(b)  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

(d)  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that the claimed risk of harm from Rochas and/or his associates, even if true, is not as imminent as so claimed; that Rochas did not have a real intention to seriously harm or kill him; that state protection will be available; and internal relocation alternative is viable. [11]-[24]

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 8 August 2019, the Board conducted an oral hearing for his appeal.

9.  Having considered the evidence, the Board found that the applicant’s evidence in support of his claim, including the farmland was forcibly taken by Rochas in late 2016, is not acceptable and that because of that it was not necessary to consider state protection or internal relocation. [52]-59]

Application for leave to apply for judicial review of the Board’s Decision

10.  The applicant has filed Form 86 dated 22 October 2019 for leave to apply for judicial review of the Board’s Decision.

11.  In his affidavit in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

12.  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).

13.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant complained that the Board did not accept his evidence and he asked the Court to review it.

14.  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.”

15.  The applicant has raised no valid ground to challenge the Board’s findings.

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

DISPOSITION

17.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.