DIKE CHIMUANYA GEORGE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2496/2019

[2025] HKCFI 285

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2496 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 3 July 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 asked for a hearing. He appeared before the Court on 6 January 2024.

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 47, is a national of Nigeria. By a letter dated 10 October 2013, he lodged a non-refoulement claim with the Immigration Department for the reasons that, upon refoulement, he would be harmed or killed by the police and his creditors because his late brother had owed them a debt that he could not pay. He had made a torture claim, which the Director had dismissed.

5.  According to the applicant, the government wanted to dispossess a large piece of land in Obingwa owned and occupied by his family, including his 4 uncles’ families. In early 2010, armed police officers came to the land and intended to dispossess them of the land. A fight broke out between the police officers and the families. The police officers used guns and batons whereas the families used knives, guns, bows and arrows. One police officer was killed and some were injured. The applicant’s father was shot to death. He was hit by a policeman with a baton on the chest. He had sustaining minor injuries. He managed to escape to Lagos where he had stayed for around one year. His brother Goodman told him that police were still looking for him. Goodman borrowed a loan of US$20,000 from his creditors for him to leave Nigeria. He was told that the creditors were looking for him, threatening that they would kill him if he did not repay the loan. He was also informed that Goodman was killed by the police. He does not believe that police will protect him or he may relocate to anywhere in Nigeria. He has now lost contact with his mother.

6.  Details of the applicant’s story can be found in paragraph 9 of the Director’s Decision dated 15 June 2018 (“the Director’s Decision”).

7.  The applicant arrived in Hong Kong on 16 April 2011 as a visitor. He was allowed to stay 30 April 2021. He overstayed since 31 April 2011. He was arrested by police and referred to the Immigration Department. He does not believe police in his country will protect him. Nor does he consider internal relocation is viable.

The Director’s Decision

8.  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”);

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”); and

9.  By way of the Director’s Decision, the Director dismissed the applicant’s application for the reasons that (i) the low intensity and frequency of past ill-treatment from the police and the creditors indicate that the future risk of being harmed or killed upon his return to Nigeria is not likely to materialize [14]-]20]; (ii) he did not have evidence to prove the fight in early 2011 [21]-[23]; (iii) state protection will be available [24]-[26]; and internal relocation is viable [27]-[28].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board. On 11 April 2019, the Board conducted a hearing. The applicant had given oral evidence before the Board.

11.  Having considered the evidence, the Board dismissed the appeal on the reasons below:

“41. However, I consider that the number and nature of inconsistencies and contradictions in the Petitioner’s evidence were sufficiently serious as to undermine the reliability of the Petitioner’s story …

42. It was clear from the Petitioner’s evidence that his stated fears are based almost entirely on hearsay and speculation. …

46. In my view, it is mere conjecture that the Policemen or the Creditors would be personally after him, let alone be waiting to kill him upon his return. In my view, there is no credible basis for his stated fears.”

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

12.  The applicant has filed Form 86 dated 28 August 2019 for leave to apply for judicial review of the Board’s Decision.

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

DISCUSSION

14.  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).

15.  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 believe his evidence and asked the Court to review the Board’s Decision.

16.  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.”

17.  The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. The Board has stated its reasons for disbelieving his evidence. There is no valid ground from the applicant to challenge the Board’s Decision.

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

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

DISPOSITION

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