Chukwukebe Joseph Uchenna v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2005/2019

[2024] HKCFI 2557

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2005 OF 2019

_____________

____________

______________

J U D G M E N T

______________

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 4 June 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 4 September 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 46, is a Nigerian. He last entered Hong Kong as a visitor using another identity on 4 March 2014 and overstayed since 19 March 2014. The applicant was arrested by the police on 4 September 2015 and he made a non-refoulement claim on 6 September 2015. The claim was made on the basis that, if refouled, he would be harmed or even killed by Chief Chinedu because he was unable to compensate for the stolen goods that Chief Chinedu entrusted him to sell.

5.According to the applicant, Chief Chinedu was affiliated to All Progressive Grand Alliance (“APGA”). In June 2007, the applicant obtained motor spare parts on trust from Chief Chinedu to sell but the goods were stolen. The applicant could not recover the goods despite report to the police and had no money to compensate Chief Chinedu. In July and August 2007, Chief Chinedu sent his underlings to threaten the applicant through his father.

6.Thereafter, the applicant fled to Congo. He was informed by his father that Chief Chinedu’s underlings had been to his home many times. In May 2013, the applicant returned to Nigeria hoping that his problems with Chief Chinedu had died down. However, he heard from his family that Chief Chinedu and his underlings had been to his home upon knowing his return to Nigeria. The applicant therefore fled to Lagos in June 2013 and subsequently returned to Congo, where he stayed for ten months. In March 2014, the applicant came to Hong Kong for business, during which he lost his passport. He therefore overstayed.

7.The applicant was of the view that he could not seek protection from the police because Chief Chinedu was well connected to them. The applicant considered relocation to Congo not viable due to its political problems. He also ruled out internal relocation within Nigeria due to his religion and tribe.

8.Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 28 June 2018 (“the Director’s Decision”).

The Director’s Decisions

9.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”).

10.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that: (i) the low intensity and frequency of physical harm suffered by the applicant indicated the unlikelihood that he would be harmed by Chief Chinedu upon his return to Nigeria [14]-[15]; (ii) the influence of Chief Chinedu and even APGA was limited to the applicant’s locality [16]-[18]; (iii) the credibility of the applicant’s claim was in doubt [19]; (iv) state protection would be available [21]-[23]; (v) internal relocation would be viable [24]-[26] and (vi) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [27]-[32], Persecution risk [33]-[37] or Torture risk [38]-[41].

The Board’s Decision

11.The applicant appealed the Director’s Decision to the Board. On 19 February 2019, the Board conducted an oral hearing.

12.The Board considered that the applicant’s immigration history indicated a significant level of deceit [28]. His delay in applying for non-refoulement protection was also inconsistent with his claimed fear from Chief Chinedu [29]. In any event, the applicant had never been harmed by Chief Chinedu and the Board was not satisfied that Chief Chinedu would still have the interest to pursue the applicant after such a long lapse of time. Furthermore, internal relocation would also be viable option [30].

13.Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [32]-[47]. The applicant’s appeal was therefore dismissed and the Director’s Decision was confirmed.

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

14.The applicant has filed Form 86 dated 15 July 2019 for leave to apply for judicial review of the Board’s Decision.

15.In his affidavit in support of his application, the applicant said the Board did not practice human rights in good way.

DISCUSSION

16.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).

17.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he did not think that the Board was wrong, but he did not want to return to Africa and asked the Court to review the Board’s Decision.

18.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appealheld:

“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.”

19.The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. The Board had doubts over his purpose of coming to Hong Kong. His complaint in paragraph 15 is only his bare allegation without any evidence in support.

20.Thereis no valid ground from the applicant to challenge the Board’s Decision.

21.There is no reason that the Court should interfere with the Board’s finding of the facts.

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

CONCLUSION

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

The applicant appeared in person.