Nnabuihe Gift Ekeoma v. Torture Claims Appeal Board

CACV 11/2022

[2022] HKCA 989

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 11 OF 2022

(ON APPEAL FROM HCAL NO 140 OF 2019)

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Before: Hon Au and Chow JJA in Court

Date of Written Submissions: 20 January 2022

Date of Judgment: 25 July 2022

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JUDGMENT

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Hon Chow JA (giving the Judgment of the Court):

1.On 6 January 2022, the Applicant, acting in person, filed a notice of appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 31 December 2021 (“the Order”)refusing to grant him leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) dated 11 December 2018. The Board dismissed the Applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 25 February 2015 and 24 May 2017.

BACKGROUND

2.The Applicant is a national of Nigeria.  He arrived in Hong Kong on 22 June 2008 as a visitor with permission to remain up to 13 July 2008.  He overstayed, and was arrested by the police on 23 June 2009.  After he was referred to the Immigration Department for investigation, he raised a torture claim (which was later taken as a non-refoulement claim), alleging that if he returned to Nigeria he would be harmed or killed by members of the then ruling political party, Peoples Democratic Party (“PDP”), due to his father’s involvement in an opposition party.  Details of the Applicant’s claim were summarised by the Judge at §§1-2 of the CALL-1 Form.

3.By a Notice of Decision dated 25 February 2015 and by a Notice of Further Decision dated 24 May 2017, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.The Applicant appealed the Director’s decisions to the Board.  On 11 December 2018, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decisions (“the Board’s Decision”).

5.The Board found serious gaps, inconsistencies and contradictions in the Applicant’s evidence given to the Director and at the appeal hearing.  The Board doubted the Applicant’s credibility regarding his claim of fear of harm which was further undermined by his failure to raise his claim upon his arrival in Hong Kong until almost one year later and only after his arrest by the police.  The Board considered that there was no evidence or reason for the PDP to have any adverse interest in him as he was never involved in any politics and his father had passed away.  In any event, the PDP had since lost the following general elections and was no longer the ruling power.  The Board concluded that there was no real risk that the Applicant would face under any of the proscribed forms of harm upon his return to Nigeria, and his claim for non-refoulement protection failed on all applicable grounds.

THE JUDGE’S DECISION

6.On 15 January 2019, the Applicant filed his Form 86 against the Board’s Decision.

7.On 31 December 2021, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“10. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 51 – 99 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

11. The fact is that it has been established by the Director in his decisions that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nigeria, decisions also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

12. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

THIS APPEAL

8.In his Notice of Appeal dated 6 January 2022, the Applicant sought to set aside the Order and requested for leave to apply judicial review be granted.

9.The Applicant stated in his grounds of appeal that he would like to challenge the judgment, and wanted to show some error in the decision of the Board.

10.In his 3-page written submissions dated 13 January 2022, the Applicant repeated the facts of his case and raised some general complaints against the Board’s Decision.

DISCUSSION

11.In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)). Further, the court will not intervene by way of judicial review unless there are errors of law or irrationality or procedural unfairness in the decision of the Board: Re Kartini [2019] HKCA 1022.

12.The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision dated 31 December 2021, and has failed to raise any viable grounds of appeal against the Judge’s decisionin his Notice of Appeal or written submissions.

13.The Applicant’s appeal has no merits, and is dismissed.

The Applicant, acting in person