ODII SAMUEL EKENE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3034/2019

[2025] HKCFI 3138

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3034 of 2019

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 present 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 26 September 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.  He appeared before the Court on 9 September 2025.

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 49, is a national of Nigeria.  He came to Hong Kong as a visitor on 5 January 2018.  He overstayed and reported to the Immigration Department that he had lost his passport.  On 14 May 2018, he lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by the Youth Union, the king of his local village and the chairmen of the Onitsha Local Government areas because he was falsely accused of being homonsexual.

5.  According to the applicant, his brother told him that his friend was killed by the Youth Union because he was a homosexual and his friend had mention his name as his sexual partner to the Youth Union and that they were looking for him.  He alleged that if he returns to his country, those people will harm or kill him.  In fact, he is not a homosexual person and had no homosexual activity with his friend.  He does not know why his friend did that to him.  His family members complained to the king, who told them to bring him back.

6.  Details of his claim are set out at paragraph 7 of the Notice of Decision dated 22 November 2018 (“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 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”).

8.  By way of the Director’s Decision, the Director dismissed the applicant’s claim because it was unsubstantiated.  Besides, state protection is available and internal relocation is viable, which will mitigate or neutralize the applicable risks.

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board.  On 9 May 2019, the Board conducted an oral hearing for his appeal.

10.  Having considered the evidence, the Board found that the applicant was not a reliable witness, whose evidence was inconsistent and vague. [35] The Board found that there is no real of the applicable risks if he returns to Nigeria. [41] See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003034_2019_files/the_Board's_Decision.pdf.

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

11.  The applicant has filed Form 86 dated 15 October 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In his affidavit in support of his application, the applicant reiterated his story without raising any specific reasons to challenge the Board’s Decision.

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.  Before me, the applicant said the Board is not wrong.

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 findings.

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.

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