COLLINS OBI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2909/2019

[2025] HKCFI 693

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2909 OF 2019

_____________

BETWEEN

_____________

_____________

J U D G M E N T

_____________

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 6 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 41, who claimed to be a national of Lesotho, of which his late mother was a national. His late father was a Nigeria. He came to Hong Kong on 10 November 2015 as a visitor and was allowed to stay as such until 24 November 2015. He overstayed, surrendered to the Immigration Department and lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his paternal uncle Patrick Obi (“Patrick”) because of a land dispute.

5.  According to the applicant, Uncle Patrick was in possession of his father’s land for 20 years. His father claimed it back and Uncle Patrick refused to do so. The dispute was adjudicated by the representatives of the village and his father regained his land. However, Uncle Patrick threatened that he would kill them all. Later, his young brother and his parents were killed. Uncle Patrick admitted that he had killed them. The matters were reported to police. The police did not make investigation into the matters. He scared that he might be murdered too and he came to Hong Kong.

6.   Details of his claim are set out at paragraph 7 of the Notice of Decision dated 3 October 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. In elaboration, the Director found that (i) from the low intensity and frequency of ill-treatment by Uncle Patrick, his claimed risk is unlikely to materialize if he returns to his country; (ii) state protection will be available; and (iii) internal relocation is viable. [11]-[18]

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 17 April 2019, the Board conducted an oral hearing for his appeal.

10.  Having considered the evidence, the Board had made the following findings.

(1) The applicant has made bare assertions and provided no objective proof of those assertions. [45]

(2) Based on the evidence before it, the Board found that the applicant does not face a real risk of proscribed harm if he is removed to Lesotho and that Lesotho is not a Risk State. [67]

(3) It is incredible that Uncle Patrick was able to kill three people openly and the police did not carry out any investigation of the murders of his parents and his brothers. [76]

(4) The Board’s overall conclusion is that the applicant’s case lacks any credibility and that he can return safely to Nigeria. [77]

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

11.  The applicant has filed Form 86 dated 3 October 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, the applicant did not raise any specific ground 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.

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 Board, for the reasons given above, found that the applicant’s evidence is incredible and he does not have any risk of harm if he returns to his Lesotho or Nigeria.

17.  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.