OKEKE UGOCHUKWU DESMOND v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2303/2018

[2022] HKCFI 1363

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2303 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 30 July 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with his application on paper.

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

The applicant

4.  The applicant is a national of Nigeria.  He entered Hong Kong on 24 May 2011 and was permitted to stay until 21 June 2011 after his application for extension of stay was granted.  He did not depart and had overstayed since 22 June 2011. On 9 January 2012, he was arrested by the police.  On 11 January 2012, he lodged a torture claim, which was rejected on 22 August 2013.  The subsequent petition was also dismissed on 16 September 2013. 

5.  On 28 August 2013 and 30 August 2013 respectively, the applicant lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by his boss Mr. Emeka. 

6.  According to the applicant, he had been working for Emeka since 1989. Their company was in import and export business of motor spare parts between Hong Kong and Nigeria.  Emeka was rich and influential.  He was connected to the political group called Action Congress.  In mid-2009, the applicant was taken away and tortured by some men, who claimed to be under Emeka’s instructions, for being a suspect of misappropriating the company’s fund.  He sustained injuries and received medical treatment.  He filed a complaint to the police but later withdrawn because Emeka apologized and reemployed him.  In 2011, the applicant came to Hong Kong for business trip.  He was entrusted with the company money to purchase some goods.  However, the money was stolen. Thereafter, he received phone call of death threats from Emeka.  Out of fear, he stayed in Hong Kong for protection.  Details of the applicant’s claim are set out at paragraph 10 of the Notice of Decision dated 15 December 2017 by the Director (the “Director’s Decision”) and paragraphs 2 to 3.2 of the Board’s Decision as described below.   

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 (“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 considered the applicant’s evidence implausible [18]-[24] and, alternatively, the level of risk of harm upon his refoulement was assessed to be low because (i) the assertion that Emeka would ill-treat him was mere speculation [26]-[27]; (ii) state protection would be available to him [28]-[31] and (iii) internal relocation was a viable option [32]-[35]. 

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board.  On 10 July 2018, the Board conducted an oral hearing for his appeal, during which he answered Board’s inquiries.

10.  The Board first considered the country of origin information (“COI”) and also the applicant’s comments on COI.  It considered that, given the lapse of time, Emeka would not be interested in pursuing the applicant who had no money to repay.  Meanwhile, it was only a private dispute without state involvement [35]-[37].  Further, the COI indicated that internal relocation would be available to the applicant [9].  As a result, the applicant’s claim under Torture risk failed.  The Board also found that the applicant did not suffer any severe injury or serious harm which would qualify him as a victim under BOR3 risk [14].  Further, reasonable state protection was an available alternative [20].  For these reasons, the Board rejected the applicant’s claim on all applicable grounds.  Independently assessed, the applicant’s evidence was found to be incredible in light of his immigration history [22]-[30]. 

11.  For the aforesaid reasons, the Board dismissed his appeal.

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

12.  The applicant has filed Form 86 dated 23 October 2018 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmation in support of his application, the applicant said, in gist, the Director’s Decision [Board’s Decision] was not fair or reasonable. He cannot go back because his enemies are still looking for him and it is not safe. The Board’s Decision did not give sufficient reasons.

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 its 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

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.  Those grounds above are not valid reasons to challenge the Board’s Decision. They are his opinions or comments without evidence in support of them. The Director, in his Decision, has set out the reasons why he found the applicant’s evidence in relation to the facts of his case incredible. He did not mention the money he took from his boss to Hong Kong was in fact the government’s money. This was the first he came to Hong Kong, but his boss did not tell him the identity of the person with whom he should contact for the purchase of the vehicles parts. The fact that after his money was stolen, he did not report the theft to the police in Hong Kong. The Director found the incidents not plausible. The Board affirmed the Director’s Decision. There is no evidence from the applicant to refute the Director’s findings. I consider the Director’s reasons in support of his Decision are reasonable.

18.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

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

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