NWAZELIBE ARINZE MAERIZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2189/2019

[2025] HKCFI 148

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2189 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 8 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 16 December 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 54, is a Nigerian. He last entered Hong Kong as a visitor on 26 August 2014 and had overstayed since 20 September 2014. He surrendered to the Immigration Department on 25 February 2015 and made a non-refoulement claim on 24 April 2015. The claim was made on the basis that, if refouled, he would be harmed or even killed by his creditor due to a loan dispute.

5.  According to the applicant, he borrowed money from the creditor between 2011 and 2012 to expand his auto-spare parts business. There was no interest charged on the loan, but the applicant agreed to split the profit of his business with the creditor. In March 2013, his entire consignment was confiscated by the Nigerian customs and he failed to secure the release of the goods despite negotiation for six months. The creditor then became furious and started to harass the applicant for repayment of the loan. In September 2013, the creditor and three of his underlings vandalised the applicant’s shop and his home. Thereafter, the applicant started to move from place to place, during which he continued to receive threatening phone calls from the creditor. Eventually, the applicant left Nigeria for Hong Kong in August 2014.

6.  The applicant had never sought protection from the police because they were corrupt and could be bribed by the creditor. He also considered internal relocation not viable due to civil unrest in many parts of the country.

7.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 23 November 2018 (“the Director’s Decision”).

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

(d) risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”).

9.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk. The Director found that: (i) the absence of past ill-treatment from the creditor indicated that he had no real intention to seriously harm or kill the applicant [13]; (ii) the creditor was not as influential as claimed by the applicant [14]; (iii) state protection would be available [15]-[18] and (iv) internal relocation would be viable [19]-[25].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board. On 27 March 2019 and 3 April 2019, the Board conducted oral hearings.

11.  The Board noted that the applicant had given conflicting evidence as to the number of times he came to Hong Kong for business purpose. In any event, he had never been harmed in his private financial dispute with the creditor and there was no indication that the Nigerian government had any adverse interest against him [66]. Furthermore, internal relocation would also be available according to the country of origin information [67]-[72].

12.  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.

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

13.  The applicant has filed Form 86 dated 1 August 2019 for leave to apply for judicial review of the Board’s Decision.

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

DISCUSSION

15.  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).

16.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that the Board did not properly investigate into his case.

17.  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.”

18.  The ground under paragraph 16 is not valid as it is his bare assertion without any evidence in support.

19.  The applicant has not raised any valid reason to challenge the Board’s Decision.

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

DISPOSITION

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