Nwankno Emeka Alias Onwuemena Kingsley Iweka v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3208/2019

[2025] HKCFI 3521

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3208 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 present 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 27 September 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 13 June 2025. I shall deal with his application on the papers.

The applicant

3.The applicant, aged 61, is a national of Nigeria. He is an illegal immigrant and was arrested by police and the Immigration Department on 9 June 2015. On 18 September 2015, he lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by Pius, the Youth Wing leader of All Progressive Congress (“APC”) due to his being a secretary of the youth wing of People’s Democratic Party (“PDP”).

4.According to the applicant, Pius had invited him to join his party, which proposal he refused. Pius then made verbal threats that if he lost his election, he would kill the applicant. In late 2014, there were about 300 APC members who attacked the applicant and other members of PDP with machetes and batons. He was injured and admitted in hospital for medical treatment. He reported to police, which took no action. The APC people reported the matter to police accusing them for the attack and he was under investigation. Those are the reasons for him to come to Hong Kong.

5.Details of his claim are set out at paragraph 39 of the Board’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 Notice of Decision dated 30 April 2018 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated. Besides, state protection is available and internal relocation is viable, which will mitigate or neutralize the applicable risks.

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 3 June 2019, the Board conducted an oral hearing for his appeal.

9.Having considered the evidence, the Board found that the applicant’s evidence was unreliable due to the inconsistencies and contradictions [41]; state protection will be available to him [59]-[63]; and internal relocation is viable [85]-[89]. Applying the above factors to the case, the Board dismissed the appeal. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003208_2019_files/the_Board's_Decision.pdf.

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

10.The applicant has filed Form 86 dated 28 October 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, the applicant did not raise any specific reason to challenge the Board’s Decision.

DISCUSSION

12.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).

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

14.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.”

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

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

DISPOSITION

17.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