OBIAHUBA UZO CHUKWU JAPHETH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3105/2019

[2025] HKCFI 3405

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3105 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 absent on 13 June 2025 and being present on 18 July 2025 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 18 July 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 is an illegal immigrant, having overstayed in Hong Kong and was arrested by police on 10 January 2015. He lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by his half-brother, Emmanuel due to a land dispute.

5.  According to the applicant, his father had 2 wives. Emmanuel is the eldest son of the first wife. He is the youngest son of the second wife. There are altogether 5 children in the family. His father passed away, leaving a few landed properties to the children. There was a dispute between Emmanuel, himself and another brother over the properties. Emmanuel wanted to owe all the properties and demanded him and his other brother to sign a document to leave the properties to him. He and his brother refused. Emmanuel called his people to attack the applicant with machetes, rods and knives, causing him injuries, for which he had to receive medical treatment. Emmanuel also killed the other brother. Emmanuel has connection with the ruling party members. For those reasons, he fled Nigeria for Hong Kong.

6.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated (“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 Notice of Decision dated 12 December 2018 (“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. The Board did not hold an oral hearing as it considered it was not necessary to do so.

10.  Having considered the evidence, the Board found that the applicant had not suffered any serious physical harm from Emmanuel [34]; that there was no evidence that the state was involved [40]; and that internal relocation is viable [[45]. Applying those factors to the applicable risks, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision. See the Board’s Decision through hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003105_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 21 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 reason 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 confirmed he understood the Board’s Decision and he asked this Court to review it.

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

DISPOSITION

17.  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