ANAZODO GODSON NCHEKWUBE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2615/2019

[2025] HKCFI 436

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2615 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 5 September 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.

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, aged 59, is a national of Nigeria. He last entered Hong Kong as a visitor on 25 March 2015 and he was allowed to stay until 15 April 2015. He overstayed. He surrendered to the Immigration Department on 15 April 2016. On 4 November 2016, a removal order was issued against him. By written signification dated 12 April 2017, the applicant lodged a non-refoulement claim on the basis that, if refouled, he will be ill-treated or even killed by Boko Harem because he is a Christian; and Mr. Okeki and Mr. Umeh because they think that he should bear the responsibility for the death of their sons, who were his apprentices.

5.   According to the applicant, he was born a Christian. He ran 2 electronics shops in Sabon-Gari Market (“the market”). In or about early 2014, about 50 people of Boko Harem came to his shop at the market and told him to convert to Muslim. He refused, whereupon they slapped his face and hit him with a whip call koboko, causing injuries to his back, which bled intensely. He had to receive medication and recovered in 3 days.

6.   On 1 April 2014, about 100 people of Boko Harem attacked the Giwa military barrack of Kano State, near the market. Two of his apprentices, Uchenna and Ifeanyl were killed. He escaped to Kaduna State.

7.   In a meeting with Mr. Umeh, father of Uchenna and other people on the incident of his apprentices being killed, Mr. Umeh hit him on his head with a wooden stick. His head bled and he had to receive medication.

8.   In or about December 2014, during a community meeting, Mr. Okeke, father of Ifenayl, hit his neck with a 4-inch long rod. He was injured and had to receive medication. He only recovered after 3 months. He had reported the matter to police. The police officer advised him to escape to Lagos. He did so and lived with his paternal uncle there.

9.   About the end of December 2014, Mr. Okeke and Mr. Umeh threatened to kill him. In March 2015 he decided to and did leave Nigeria for Hong Kong. Whilst he was in Hong Kong, his paternal uncle told him that Mr Okeke and Mr Umeh had killed his father with gunshot. They had also burned down his house in Nigeria.

10.   He considered that state protection will not be available to him and internal relocation will not be viable if he returns to Nigeria.

The Director’s Decision

11.  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”).

12.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatment was indicative of small risk only [15]; (ii) state protection would be available to him [16]-[20]; and (iii) internal relocation was a viable option [21].

The Board’s Decision

13.  The applicant appealed the Director’s Decision to the Board. On 18 December 2018 and 14 May 2019, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [12].

14.  The Board had raised a lot of questions for the applicant. Having considered the evidence, the Board made the findings as follows:

(1) it did not accept that the Boko Harem had killed people at the market in Kano as the applicant alleged [50]-[56];

(2) the central events in the applicant’s claim is not credible [57];

(3) it did not accept that the applicant’s 2 apprentices were killed in the attack by Boko Harem [59];

(4) the claims were not credible [60];

(5) it did not accept that the parents of the 2 victims were taking revenge on him [62].

15.  As there was no factual basis in support of the applicant’s claim, the Board dismissed his appeal and confirmed the Director’s Decision.

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

16.  The applicant has filed Form 86 dated 9 September 2019 for leave to apply for judicial review of the Board’s Decision.

17.  In his affidavit in support of his application, the applicant said the Board had disregarded his dangerous situation.

DISCUSSION

18.  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).

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

20.  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.”

21.  The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. His reason in paragraph 17 is not valid to challenge the Board’s Decision.

22.  There is no reason that the Court should interfere with the Board’s finding of the facts.

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

DISPOSITION

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