Nduka Joel Onyekwere v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2928/2019

[2025] HKCFI 3139

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2928 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 19 September 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. However, he was absent at the hearing on 13 June 2025. I shall deal with his application on the papers.

The applicant

3.The applicant, aged 51, is a national of Nigeria. He entered Hong Kong as a visitor on 6 February 2015. He overstayed since 21 February 2015 and was arrested by police on 25 March 2015. He raised non-refoulement claim by written representation dated 27 March 2015 on the basis that, if refouled, he will be harmed or killed Chukwu, a village that was dissatisfied with the ruling of his father as the local king in his home village in Nigeria.

4.According to the applicant, he was the only son of his father, who was the ruler of a local district king responsible for solving disputes and distributing resources in the local area. His father was respected by the local villagers. Some of the villages were jealous of him. Chukwu was one of these people. These people wanted to kill the applicant, believing that there would be no one to inherit his father’s properties, which would then be distributed to the villagers. They were hostile to his family. In 2013, whilst he was waiting for bus, a group of men, whom he believed to be Chukwu’s people approached him. He ran away, unhurt. He had to hide himself in Lagos at various places for 8 months. At the end of 2013, he was in Lagos. He heard people shouting at him. He hid himself in the bushes nearby. The next day, he reported to the nearby police, which demanded money before taking his case. He had no money to pay them. Since then, he had to hide in various places. In January 2014, whilst he was riding a motorbike, suddenly a vehicle blocked his way. Four unknown men came out from the vehicle with guns. He immediately left his motorbike and escapted. He did not report to police. He continued hiding in various places. On 6 February 2014, he left Nigeria for Hong Kong. He learned from his friend that his father and his wife had been killed by Chukwu and his children had disappeared. He dared not return to Nigeria.

5.Details of his claim are set out at paragraph 6 of the Notice of Decision dated 30 October 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

6.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”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) his risk of being harmed or killed by his enemy was low as he was not hurt by him in Nigeria; (ii) there was no evidence that the state was involved or the state would not protect him; and (iii) internal relocation would be viable. See [12]-[23].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 11 March 2019, the Board conducted an oral hearing for his appeal.

9.Having considered the evidence, the Board rejected the main facts as the applicant alleged that he was son of a local king; that his father was targeted for threats; that his father and his wife were murdered; and that his chance of harm of any kind in Nigeria for any of the reasons he has claimed. [54]

10.For those reasons, the Board dismissed his appeal and confirmed the Director’s Decision. See Board’s Decision through hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL002928_2019_files/the_Board's_Decision.pdf.

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

11.The applicant has filed Form 86 dated 4 October 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affidavit in support of his application, the applicant said the Board’s Decision did not meet the standard of fairness; the adjudicator has not analyzed the country of origin information in relation to his future risks; and the adjudicator failed to understand the materials before him.

DISCUSSION

13.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).

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

15.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.”

16.The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. Those reasons under paragraph 12 are his bare assertions or opinions without any evidence in support. They are not valid to challenge the Board’s Decision.

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

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

DISPOSITION

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

Dated the 26^th day of August 2025

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1