Anumba Emeka Frank v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1920/2019

[2025] HKCFI 132

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1920 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 3 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office. However, there is no such Decision on the file. The Board’s Decision dismissing the applicant’s appeal against the Director’s Decision as described below should be dated 27 June 2019 (“the Board’s Decision”).

2.The applicant asked for a hearing. He appeared before the Court on 16 December 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, the Director of Immigration is the interested party, and the date of the Board’s Decision, the subject matter of this application is dated 27 June 2019, instead of 3 August 2018.

The applicant

4.The applicant, aged 50, is a Nigerian. He last entered Hong Kong as a visitor on 1 December 2016 and was allowed to remain until 15 December 2016. On 16 December 2016, the applicant surrendered to the Immigration Department and made a non-refoulement claim on the same day. The claim was made on the basis that, if refouled, he would be harmed or even killed by the Boko Haram.

5.According to the applicant, he and his family were Christians. The applicant claimed running a mobile phone trading business in north Nigeria since 2015. One day in October 2016, a notice written in Arabic was put on the door of his shop requesting him to leave the region within 10 days, failing which he would be killed. About eight days later, his shop was burnt down by ten armed insurgents. The applicant believed that these were all done by Boko Haram because of the way the notice was written and the way the arsonists were dressed up. Although the applicant reported the matter to the police, no action was taken by them. Thereafter, he hid at his friend’s home for a month. As the applicant heard there were Christians killed by Boko Haram, he eventually departed Nigeria on 30 November 2016 and arrived in Hong Kong the following day.

6.The applicant maintained contact with his family while in Hong Kong and he was informed that Boko Haram was still making motions in Nigeria. He was of the view that the police would not have the ability to protect him from Boko Haram. He also considered internal relocation not viable because Boko Haram had operations everywhere throughout the country.

7.Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 15 October 2018 (“the Director’s Decision”).

The Director’s Decision

8.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”).

9.By way of the Director’s Decision, the Director dismissed the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk. The Director found that: (i) it was the applicant’s mere speculation that Boko Haram was involved in writing the threatening notice and the arson of his shop [14]-[15]; (ii) there was insufficient evidence to conclude that the police were inefficient [16]; (iii) Boko Haram did not constitute severe injury on the applicant in terms of intensity and frequency [18]; (iv) state protection would be available [19]-[21] and (v) internal relocation would be viable [17], [22]-[24].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. On 5 March 2019, the Board conducted an oral hearing.

11.The Board had some doubts regarding the credibility of the applicant that as a Christian, he would operate a business in north Nigeria, which is a stronghold of Boko Haram and an Islamic majority region [31]. It also had concerns about the authenticity of the photograph provided by the applicant about his shop after the arson [32]. Upon consideration of the country of origin information (“COI”), the Board found that Boko Haram is not active in south Nigeria like Lagos, where the majority were Christians [33]. Although the applicant tried to counter the COI findings by making a new claim at the hearing, his claim was not accepted as the Board found he was simply exaggerating [34].

12.The Board accepted the applicant’s claim that he left Nigeria in part due to fear of harm from Boko Haram and that he would still face such problem if he returned to north Nigeria [35]. Yet, such risk was no longer real given that he had already left north Nigeria [37]. In any event, the applicant could simply resume living in Lagos, a place where he previously had lived for over a decade [38].

13.Based on such findings, the Board rejected the applicant’s claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk [14]-[25], [41]-[49]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

14.The applicant has filed Form 86 dated 9 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 complained that the Board did not look into his case properly.

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 Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that the Board’s Decision is unfair because it did not accept his evidence.

18.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.”

19.For the reasons given, the Board did not believe the applicant’s evidence. The applicant’s complaint that the Board did not accept his evidence is not sustainable because it is only a general assertion without any evidence in support. The Board is not bound to accept his evidence. His complaint that the Board did not look into his case properly is his bare assertion or opinion without evidence in support.

20.The applicant has not raised any valid reasons to challenge the Board’s Decision.

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

DISPOSITION

22.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.