OKAFOR CHINEDU VINCENT alias BAH ELHADJ OUMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2603/2019

[2025] HKCFI 1299

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2603 OF 2019

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BETWEEN

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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 19 July 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.  The applicant asked for a hearing. However, he was absent at the hearing on 10 March 2025. I shall deal with his application on the papers.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant is a national of Nigeria. He last arrived in Hong Kong on 22 May 2010 by the strength of his Guinean passport on a false identity and was later arrested by police on 30 September 2010. He then presented his own Nigerian passport as proof of identity. The applicant raised a torture claim on 15 October 2010 which was rejected on 25 October 2013. He subsequently lodged his non-refoulement claim on 30 October 2013.

5.  The applicant’s claim was based on his fear of being harmed or killed by his creditor due to a monetary dispute in Nigeria.

6.  According to the applicant, he was unable to return the money borrowed from his creditor and was abducted and assaulted by the creditor and his men from the Odua Peoples Congress, but he did not report the incident to the police. Details of his claim are set out at paragraph 8 of the Notice of Decision dated 5 October 2021 (the “Director’s Decision”).

The Director’s Decision

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

(a) 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”);

(b) 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

(c) 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”).

8.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that the level of risk of harm from his creditor was assessed to be low, as behaviours in the past showed no real intention to severely harm or kill him; that the government had no adverse interest in him; and that the assessed creditor was not as powerful and resourceful as alleged by him [12-15]; that state protection was available [16-17]; and that internal relocation alternatives were available and reasonable [18-22].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 14 May 2019, the Board conducted an oral hearing for his appeal, during which the applicant did not want to answer questions from the Board in relation to his claim, considering his health and emotions. But after explanation from the Board, he agreed to proceed and provide answers [11-12].

10.  Having considered the evidence, the Board found that the behaviour of the creditor and his men showed no real intention to cause any serious harm on the applicant [73]. Further, the applicant failed to show that the alleged ill-treatment he would face attained a minimum level of severity to establish his claims [112, 115]. In any event, having considered the Country of Origin Information, state protection is available to the applicant if he returns to Nigeria [82]. In conclusion, the Board held the applicant’s claim failed under all applicable risks. It therefore dismissed his appeal and confirmed the Director’s Decision.

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

11.  The applicant has filed Form 86 dated 6 September 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In his affidavit in support of his application, the applicant exhibited the news stories of Nigeria and deposed in 7 pages statement, which explained his fears, summarised as follows: there were still wound marks on his bodies due to injuries he sustained and that he still suffered from psychological stress and could not continue further to research for more documental proof.

DISCUSSION

13.  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).

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

15.  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.”

16.  The applicant has raised no valid ground to challenge the Board’s Decision.

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

DISPOSITION

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