Onyike Samuel Tempo v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2508/2019

[2025] HKCFI 530

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2508 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 22 August 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 15 January 2025.

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 35, is a Nigerian. He last entered Hong Kong as a visitor on 21 July 2011 and had overstayed since 8 August 2011. The applicant was arrested by the police for overstaying on 15 June 2012. He made a torture claim on 17 June 2012, but was rejected on 20 November 2013. The applicant lodged a further non-refoulement claim on all applicable grounds other than Torture risk[1] on 29 August 2013. The claim was made on the basis that, if refouled, he would be seriously harmed or even killed by Alahji, who had connections with gangsters and was involved in politics, because he had an affair with his wife (“Oluchi”).

5.According to the applicant, he first met Oluchi in around 2007 and began dating her. In April/May 2011, Oluchi confessed that she had been married to Alahji since 2009 and warned the applicant that Alahji had discovered their relationship because she was pregnant with the applicant’s baby. A few days later, the applicant heard from his friend that Oluchi had been killed by Alahji. Out of fear, he left home and stayed at his friend’s place. In around May/June 2011, he was informed that Alahji and his gang killed his mother after they were unable to find him. Thereafter, although the applicant relocated to two other states, he was still being chased by some gangsters. Subsequently, upon advice and arrangement by some unknown men, the applicant left Nigeria on 20 July 2011 and arrived in Hong Kong the following day. He later married a Hong Kong resident and had a daughter with her.

6.The applicant was of the view that he could not seek protection from the police because they were corrupt. He considered internal relocation not viable as well given Alahji’s resources and connections. The applicant also mentioned that he could not return to Nigeria because he did not want to separate from his wife and daughter.

7.Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 21 May 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”); 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”).

9.By way of the Director’s Decision, the Director dismissed the applicant’s claim on Persecution risk, BOR 2 and BOR 3 risk. The Director found that: (i) the applicant’s claim about Alahji murdering Oluchi and his mother was based entirely on hearsay [13]; (ii) the low intensity and frequency of past ill-treatment from Alahji indicated a small future risk of harm upon his return to Nigeria [14]; (iii) there was no evidence of state involvement in the matter [15]; (iv) the applicant’s delay in seeking non-refoulement protection was inconsistent with the conduct of someone genuinely in fear [16]; (v) state protection would be available and the Nigerian government had also taken measures to combat corruption [17]-[21] and (vi) internal relocation would be viable [22]-[24].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. On 15 July 2019, the Board conducted oral hearing.

11.The Board found the applicant’s claim was based purely on hearsay and was illogical in many aspects. His delay in applying for non-refoulement protection was also inconsistent with the conduct of someone genuinely in fear [19].

12.In any event, the applicant had never been inflicted with any injury and that the matter was purely a personal dispute between him and Alahji. Based on such findings together with the availability of state protection and internal relocation according to the country of origin information, the Board rejected the applicant’s claim on Persecution risk, BOR 2 and BOR 3 risk [8]-[15], [22]-[43].

13.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 29 August 2019 for leave to apply for judicial review of the Board’s Decision.

15.In his affidavit in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

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 could not say that the Board was wrong. But he asked this Court to review the Board’s Decision.

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.The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded because the Board did not believe his evidence, state protection will be available and internal relocation is viable. There is no valid ground from the applicant to challenge the Board’s Decision.

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

21.The applicant 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.