HCAL 1089/2024

[2024] HKCFI 2368

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1089 OF 2024

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

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the Applicant in open court;

1. Leave to apply for Judicial Review be refused; and

2. A Restricted Proceedings Order (RPO) be made against the Applicant.

Observations for the Applicant:

Introduction

1. This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 25 April 2024 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claim had been rejected by both the Director and the Torture Claims Appeal Board (“the Board”) under the Unified Screening Mechanism (“USM”) on all applicable grounds.

2. The Applicant is a 58-year-old national of Nigeria who arrived in Hong Kong on 17 May 2007 as a visitor with permission to remain as such for 21 days during which he was arrested by police on 19 May 2007 for the offence of money-laundering activities and for which he was subsequently convicted and sentenced to prison for 28 months, during which he raised a torture claim later taken as a non-refoulement claim for protection to the Immigration Department on the basis that if he returned to Nigeria he would be harmed or killed by his former business partner for disclosing to the police of their illegal activities.

Previous Non-Refoulement Claim

3. By a Notice of Decision dated 24 November 2014 and a Notice of Further Decision dated 8 May 2017 the Director rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), 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”).

4. In his decisions 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 former business partner and followers upon his return to Nigeria as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any threats being made against him by them other than hearsays and his own speculations, that in any event it was a private dispute between him and his former business partner 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”) s