Ugbe Kenneth Ngozi v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1127/2019

[2023] HKCFI 2077

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1127 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 in open court;

Order by Deputy High Court Judge K.W. Lung:

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 11 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.The applicant is a national of Nigeria. He last entered Hong Kong on 13 June 2005 and was permitted to stay as a visitor until 27 June 2005. On 29 May 2005, he was arrested by the police in Hong Kong. After being referred to the Immigration Department, he raised a torture claim on 28 June 2006, which was rejected on 2 January 2013. On 26 November 2013, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by Chief Akweh because he refused to succeed his father’s throne and Akweh and the villagers wanted to prevent the applicant from exposing the human sacrifice rituals.

5.According to the applicant, he was born in a village called Ute-Okpu. In the village, the villagers practiced Pagan-worshipping, a religious practice that involved animal and human sacrifice. The applicant’s father was the king of village of Agbor Delta State. As the applicant disapproved of the religious practice, he converted to Christianity in 1987. His conversion led to conflicts within his family. To avoid future conflicts, the applicant and his wife moved to Agbor City. However, during his stay there, he was constantly threatened and assaulted by Akweh and fellow villagers from 2001 to 2003. In around 2003, the applicant’s father died. The tradition required the applicant to succeed to his throne. Despite the relentless pressure given by the villagers, the applicant declined as the process of succession required a secretive human sacrifice. Initially, Akweh and the villagers issued death threats to the applicant if he insisted on the refusal. Thereafter, in 2005, Akweh and twenty villagers visited the applicant’s house, killed his wife and daughter and chopped the applicant’s arms and legs. Out of fear, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 8 of the Notice of Decision dated 10 July 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

6.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”); and

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”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the alleged ill-treatments did not attain a minimum level of severity [24]; (ii) his own behavior was not consistent with the alleged threats [25]; (iii) the claimed risk of harm was not imminent [26]; (iv) state protection would be available to him [27]-[29]; and (v) internal relocation was a viable option [30]-[31].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 20 November 2018, the Board conducted an oral hearing for his appeal, during which he clarified certain matters [23]. He also confirmed that he was fluent in English and was able to participate the proceeding in English [54].

9.The Board recapped the applicant’s claim and his personal background, as well as considered the oral evidence [33]-[65]. Having evaluated all the evidence, the Board found that the applicant was not a reliable witness [66]. For example, the applicant gave different dates of his father’s death at the oral hearing and before the Director, a factor which was crucial to his claim [68]. He was also vague about his late wife’s background and family [68]-[70]. He also contradicted himself as to why he left for Agbor City [72]. Besides, he was inconsistent as to the details of the attack in 2005 and his injuries [74]-[78]. In these circumstances, the Board found that the applicant’s assertions were riddled with inconsistencies, contradictions and implausibility.

10.On the basis of lack of credibility, the Board rejected the applicant’s claim and dismissed his appeal.

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

11.The applicant has filed Form 86 dated 29 April 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affidavit in support of his application, the applicant did not set out any specific ground.

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 its 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, did not accept his evidence. There is no valid reason to challenge the Board’s Decision.

17.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

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

Dated the 17^th day of August 2023

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