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

HCAL 897/2020

[2025] HKCFI 5302

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 897 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court

(1)   Form 86 be amended, naming the Torture Claims Appeal Board /
Non-refoulement Claims Petition Office and the Director of Immigration as the Putative Respondent and the Putative Interested Party respectively.

(2)   The application for leave to apply for judicial review be refused.

Observations for the Applicant:

Introduction

1.  By Form 86 (“Form 86”) filed on 14 May 2020, the Applicant seeks leave to apply for judicial review (“the Leave Application”) of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (“the Board”)’s decision dated 13 March 2020 (“the Board’s Decision”), confirming the Director of Immigration’s decisions dated 22 December 2015 and 12 January 2017 (“the Director’s Decisions”), which rejected his

2.  The Applicant’s personal background, his case, and his claims that he would be harmed or killed by a creditor in Nigeria if returned due to failure to repay a debt, together with the relevant immigration and procedural history, were set out in the Board’s Decision.  It is not necessary to repeat them here, and for completeness’ sake, reference can be made to that decision, the hyperlink to which is included below[1]. Unless otherwise specified, I shall adopt the abbreviations and descriptions used by the Board below.

Discussion

3.  For the reasons below, I do not consider the Applicant’s intended application for judicial review of the Board’s Decision to be reasonably arguable with any realistic prospect of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676). 

4.  Having reviewed all the evidence, the Board was profoundly unimpressed by the Applicant’s credibility.  It identified “significant” concerns arising from the information he provided, which cast serious doubt on the reliability of his account.  As observed, he repeatedly introduced new and unrelated grounds to support his claim, and the Board was unable to determine which, if any, represented his true basis for protection.  The Applicant’s case appeared in three distinct forms: first, in the First Report; second, in his Answer to Q35 of the NCF, which was subsequently elaborated upon during the Interview; and third, in the Grounds of Appeal.  The Applicant persistently altered the foundation of his claim by adding new grounds that bore no connection to those originally advanced.  By way of illustration, the Board highlighted the following examples:

(1)   In the First Report, the Applicant relied on a single ground: in around mid-2010, he borrowed money from the loan sharks in his country, with the understanding that it would be repaid within a year.  Unfortunately, his goods were destroyed when the entire market building was set ablaze, allegedly by a suspected terrorist group.  As a result, he was unable to repay the debt.  He claimed that members of the loan sharks had issued serious threats against his life, including one individual who told him that if failed to repay, he would be a dead man.

(2)   At the time of filing his First Report, the Applicant should have been fully aware of the widespread attacks by Boko Haram in Nigeria.  However, he made no mention of it, nor did he refer to the tragic death of his brother, which he later claimed had a significant impact on his personal safety.  This omission undermined the credibility of his account and raised serious doubts about the reliability of his claims.

(3)   In contrast to the First Report, the Applicant expanded significantly on his debt-related claim the NCF by identifying the creditor, Mr. David.  He alleged that he had borrowed 5 million Naira from Mr. David for a motor parts business jointly operated with his youngest brother.  Following the destruction of the business, he claimed he was unable to repay.  Mr. David immediately contacted him, gave him seven days to repay the debt, and threatened that “he would be a dead man” if he failed to do so.  This newly detailed account named a specific creditor and introduced the Applicant’s business venture.  In the NCF, the Applicant also sought to introduce the Boko Haram aspect for the first time and attempted to link it to Mr. David.    

(4)   Then, in the Notice of Appeal, the Applicant alleged that the Director erred in rejecting his claim.  However, aside from a general assertion that his life was at risk and that he would die “mysteriously”, there was no mention of Mr. David or the specific death threat previously relied upon. This omission further undermined the consistency and credibility of his account.

5.  The Board observed, and made clear findings of fact, that the Applicant appeared to fabricate his story as he went along.  It was unable to identify the central thread of his claim.  The account based on Boko Haram was a late addition, lacking substance and credibility.  In any event, even if the part concerning Mr. David were accepted as true, though it reminded doubtful, it did not reach the minimum threshold of severity required to engage protection obligations.  The Board therefore concluded that the Applicant had failed to establish a well-founded fear or persecution.  The elements required to substantiate a claim for torture risk were not satisfied.  He had not demonstrated that his BOR 2 rights were engaged, nor were there substantial grounds for believing that, if returned, he would face a real risk of torture and CIDTP.  

6.  It is well-established that the Board was primarily responsible for assessing the evidence.  As the Applicant has not raised any complaint of error of law, procedural unfairness, or irrationality in relation to the Board’s Decision (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142), nor am I satisfied that any such issues exist, bearing in mind the enhanced standard required to uphold the high standard of fairness in decision-making (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14), it is not a matter for the Court to intervene.  The Court’s role in a judicial review is not to provide a further avenue of appeal (see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163).

Conclusion

7.  For these reasons, the Leave Application is dismissed.

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