Belonwu Daniel Eloka v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2477/2019

[2025] HKCFI 1207

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2477 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 25 June 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.The applicant asked for a hearing. However, he was absent at the hearing on 10 March 2025. I shall deal with his application on the papers.

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 is a national of Nigeria and he was allowed to stay until 11 November 2007. He applied for an extension on 10 November 2007 but was refused, and in due course, he lodged his non-refoulement claim.

5.The applicant’s claim was based on his fear of being harmed or killed by the rioters in his country.

6.According to the applicant, he was attacked by rioters in around October 2007 when he was working in his uncle’s shop. He had no idea the cause of the riot. He was injured on his forehead and he fell unconscious. He found himself in the hospital when he came round. He had a wound of 2 inches long. He did not report the matter to police. His uncle arranged him to leave Nigeria. In Hong Kong, he was told by his friends in Nigeria that his uncle had passed away.

7.Details of his claim are set out at paragraph 6 of the Notice of Decision dated 27 June 2014 (“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 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 Decision, the Director assessed the applicant’s claim on all applicable grounds except BOR 2 risk and dismissed his claim. In summary, the Director found that the level of risk of harm upon the applicant’s return is assessed to be low as there was a low intensity of ill-treatment from the rioters and low possibility of the applicant being targeted [10-11]; that reasonable state protection is available if he returns to Nigeria [12]; and that internal relocation alternatives are available and reasonable [13].

10.By way of the Director’s Further Decision dated 6 January 2017, the Director assessed the applicant’s claim on all applicable grounds including BOR 2 risk and dismissed his claim. The Director found that: there was no reply from the applicant to provide additional materials or facts under HKBOR [3]; and having carefully reviewed the applicant’s claim, it was considered that the applicant has failed to establish BOR 2 risk [5-6].

The Board’s 1^st Decision

11.The applicant appealed the Director’s Decision to the Board. The Board’s 1^st Decision was determined without a hearing because it found that no worthwhile and effective representation could be made [23].

12.Having considered the evidence, the Board found that the applicant might get injured in one of the riots which were prevalent in Nigeria, but the applicant was not subjected to any injuries which were personal and genuine risk to him as riots were generally civil unrest among civilians [30]. In conclusion, the Board held that the applicant’s claim failed under all applicable grounds besides BOR 2 risk. The Board in its 1^st Decision therefore dismissed his appeal and confirmed the Director’s Decision.

The Board’s 2^nd Decision

13.On 6 January 2017, the applicant appealed against the Director’s Further Decision. On 17 May 2019, the Board conducted an oral hearing for his appeal, and found that the applicant told a story which was contradictory to his original story [16-17]. The Board retracted the applicant’s original case of the riots [18-23] and then considered the applicant’s ‘true story’. The Board completely rejected the applicant’s claim that some people wanted to kill him and did not accept such an inordinate delay in filing the torture claim [37-41] Therefore, it dismissed the applicant’s appeal and confirmed the Director’s Further Decision.

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

14.The applicant has filed Form 86 dated 27 August 2019 for leave to apply for judicial review of the Board’s 2^nd Decision.

15.In his affirmation in support of his application, the applicant exhibited the Board’s 2^nd Decision and deposed that he would like to reject and review the decision as they disregarded his dangerous situation. No valid grounds were put forth.

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.

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 applicant has raised no valid ground to challenge the Board’s findings.

20.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s 2^nd Decision.

DISPOSITION

21.I refuse to grant leave to the applicant to apply for judicial review of the Board’s 2^nd Decision. Accordingly, I dismiss his application.

The applicant was unrepresented and did not appear.