Owunwa Stephen Chidiebere v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3219/2019

[2025] HKCFI 3136

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3219 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 24 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 49, is a national of Nigeria. He is an illegal immigration, having overstayed in Hong Kong and was arrested by police. He lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by the village king and chief and the military of Nigeria.

4.According to the applicant, the village king and chief, together with the military, were attempting to dispossess a piece of land, jointly owned by his family and other local people because oil was discovered under that piece of land. The owners of the land protested. The military killed his father and his 3 other brothers. He fears that he is being wanted by the Nigerian government and he will not obtain protection from police there. Those are the main reasons he fled Nigeria for Hong Kong. Details of his story are set out in para. 10 of the Board’s Decision.

The Director’s Decision

5.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”).

6.By way of Notice of Decision dated 21 November 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

7.The applicant appealed the Director’s Decision to the Board. On 7 May 2019, the Board conducted an oral hearing for his appeal.

8.Having considered the evidence, the Board found that the applicant’s evidence in relation to the ownership and transfer of the land was contradictory and vague, and that he invented and fabricated evidence for the purpose of obtaining non-refoulement protection. [28]-[37] Applying those factors to the claim, the Board dismissed the appeal and confirmed the Director’s Decision.  See hyperlinkhttps://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003219_2019_files/the_Board's_Decision.pdf.

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

9.The applicant has filed Form 86 dated 29 October 2019 for leave to apply for judicial review of the Board’s Decision.

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

DISCUSSION

11.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).

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

13.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.”

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

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

DISPOSITION

16.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 2^nd day of September 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