Emezuo Chukwudi Ozoemena v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2187/2019

[2025] HKCFI 145

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2187 OF 2019

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J U D G M E N T

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 19 July 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s 2^nd Decision as described below (“the Board’s 2^nd Decision”) on BOR 2 risk.

2.There is another Board’s Decision dated 16 November 2016 (“the Board’s 1^st Decision”) for the appeal against the Director’s 1^st Decision on Torture risk, BOR 3 risk and Persecution risk. See paragraph 7 below. Although the applicant has not made application for leave to apply for judicial review of the Board’s 1^st Decision, since the Board’s 2^nd Decision rely upon the facts in the Board’s 1^st Decision, the Court will take into consideration of the Board’s 1^st Decision as well.

3.The applicant did not ask for a hearing. I shall deal with his application on paper.

4.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

5.The applicant, aged 52, is a national of Nigeria. He came to Hong Kong on 2 December 2008 as a visitor and was allowed to stay until 3 January 2009. He overstayed since 4 January 2009 and lodged his non-refoulement claim by a written representation dated 9 June 2009 on the basis that, if refouled, he would be subjected to torture in Nigeria.

6.According to the applicant, he ran business of buying clothers in Hong Kong and resell them in Nigeria for profit. He had borrowed US$35,000 from his friend, Natanel. He lost his money when he was in Hong Kong. He told Natanel about it. Natanel demanded repayment of the loan, which he was unable to comply with. He considered that Natanel was well-connected with the government officials. Natanel threatened to kill him if he failed to repay the loan. His sister in Nigeria told him that Natanel was looking for him. He therefore stayed in Hong Kong.

7.Details of the applicant’s story can be found in paragraphs 6-27 of the Director’s Decision dated 30 December 2014 (“the Director’s 1^st Decision”).

The Director’s Decisions

8.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”).

9.By way of the Director’s 1^st Decision, the Director dismissed the applicant’s claim on Torture risk, Persecution risk, and BOR 3 risk for the reasons that (i) the risk of being harmed or killed if he returns to Nigeria is low [33]-[36]; (ii) state protection will be available [37]-40]; and internal relocation is viable [41]-42].

10.By Notice of Further Decision dated 3 February 2017 (“the Director’s 2^nd Decisions), the Director also rejected the applicant’s claim on BOR 2 risk for the reason that he had failed to establish by evidence he will be subjected to such risk if he returns to Nigeria.

The Board’s Decisions

11.The applicant appealed the Director’s 1^st Decision to the Board. On 20 August 2015, the Board conducted an oral hearing. At the hearing, the applicant and the Director were legally represented.

12.Having considered the evidence as per paragraphs 39-51, in which it found that his evidence was doubtful, not sustainable, illogical and flawed, the Board came to the conclusion:

“52. Based on the aforesaid reasons, I find the Appellant’s evidence unreliable and his credibility to be extremely low.”

13.The Board further found that the state was not involved in the incident, state protection should be available to him [67], and internal relocation is viable [68]-[70].

14.For the reasons above, the Board dismissed the applicant’s appeal and confirmed the Director’s 1^st Decision.

15.The applicant had also file notice of appeal against the Director’s 2^nd Decision. He was late in filing the notice of appeal. Having considered the explanation given by the applicant, the Board agreed to extend time for him to file the notice of appeal. The Board dealt with his appeal on paper.

16.Having considered the evidence and the findings in the Board’s 1^st Decision, the Board was not satisfied that the applicant would be subjected to BOR 2 risk if he returned to Nigeria. By the Board’s 2^nd Decision, the Board dismissed his appeal and confirmed the Director’s 2^nd Decision.

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

17.The applicant has filed Form 86 dated 1 August 2019 for leave to apply for judicial review of the Board’s 2^nd Decision.

18.In his affidavit in support of his application, the applicant raised the following grounds:

(1)  the adjudicator was wrong not to take into account that he would be killed by his creditor in her assessment of BOR 2 risk, therefore, the Board’s 2^nd Decision was unreasonable;

(2)  the state and authorities are corrupt and he will not be protected;

(3)  there are other victims who had been killed as a result of unpaid loan, and he may be one of them if he returns to Nigeria;

(4)  the adjudicator did not understand his situation that his creditor has determined to kill him unless he has the money to repay him;

(5)  the adjudicator had failed to recognize that his life in Nigeria will be in danger due to deep rooted corruption and fundamental instability in police force; and

(6)  the adjudicator applied the burden of proof of beyond reasonable doubt on him, which is wrong.

DISCUSSION

19.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).

20.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

21.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.”

22.Those grounds under paragraph 17 are his bare assertions or opinions without any evidence in support. As such, they are not valid to challenge the Board’s Decisions[1].

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

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

DISPOSITION

25.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 was unrepresented.