Emezuo Emeka Ben v. Torture Claims Appeal Board

HCAL 235/2021

[2026] HKCFI 2208

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 235 OF 2021

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 60-year-old national of Nigeria who arrived in Hong Kong on 7 July 2008 as a visitor with permission to remain as such up to 3 August 2008 as extended when he did not depart and instead overstayed, and was arrested by police some 10 months later 2 June 2009.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Nigeria he would be harmed or killed by his paternal uncle over their land dispute in his home village, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Umuna Orlu, Imo State, Nigeria. After leaving school he assisted in his father’s business in Abia State where his father inherited some property from his grandfather but which was coveted by his paternal uncle that had led to years of conflicts between his uncle and his father.

3.After his father’s death in 2004, the Applicant being the only son then stood to inherit his father’s estate including the property coveted by his uncle who then sent men to the Applicant to demand for a meeting to discuss about the property, but to which the Applicant avoided by leaving the country for neighboring Cote d’Ivoire (Ivory Coast), but later in 2007 when he saw some of his uncle’s friends in Cote d’Ivoire, he feared that his uncle would find out his whereabouts, and so he secretly returned to Nigeria to make arrangements to flee to Hong Kong, which he subsequently did on 6 July 2008 when he departed Nigeria for Hong Kong where he subsequently overstayed, and upon his arrest by the police some 10 months later he raised his torture claim, and after it was rejected he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 22 October 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

4.By a Notice of Decision dated 27 November 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

5.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his uncle upon his return to Nigeria as low due to the absence of any past ill-treatment from his uncle, that there is no evidence of any real intention of his uncle to seriously harm or kill him other than his own speculations, that in any event it was a private land dispute between just the 2 of them and within their family only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Nigeria with a large population of 203 million people spread across a vast territory of more than 923,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Lagos where it would be difficult if not impossible for his uncle to locate him.

6.On 11 December 2018, the Applicant through his lawyer from DLS lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 29 September 2020 before the Board with his lawyer during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board as well as with submissions made on his behalf by his lawyer. On 11 February 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

7.In its decision[1], the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his uncle over any land dispute between them that caused him to leave his country to come to Hong Kong to seek protection, that his credibility was further undermined by his failure to raise his claim upon first arriving in Hong Kong until more than 10 months later and only after his arrest by the police, that even if his account of events prior to his departure of Nigeria were true that there was no reliable evidence of any real intention of his uncle to seriously harm or kill him, and that in any event it was a private land dispute between just the 2 of them only and within their family without any official involvement that state or police protection would be available to the Applicant upon his return to Nigeria as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located by his uncle that his claim for non-refoulement protection failed on all applicable grounds.    

8.On 26 February 2021, the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1) That the Board was in breach of procedural fairness in unlawfully fettering its discretion by refusing his appeal on the grounds that they did not satisfy the requirements;

(2) That the Adjudicator acted in a procedurally unfair manner in dealing with his appeal;

(3) That the Board’s decisions to refuse his appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4) That the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5) That the Board failed to give the Applicant a fair opportunity to keep forward his submissions at the oral hearing for his appeal;

(6) That the Board had significantly relied on source of news not officially recognized or were simply hearsay or outdated with the lack of credible source of information that resulted in its making groundless speculations that it is safe for him to return to his home country.          

9.These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how was he not given the opportunity to put forward his case or submissions when he was in fact represented by his lawyer from DLS throughout his appeal including his hearing before the Board. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

10.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

11.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nigeria, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

12.In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

13.As I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.

Dated the 21^st day of April 2026

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