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HCAL 3369/2019
[2025] HKCFI 4014
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3369 OF 2019
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BETWEEN
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Orji Simeon Afuluekeanya |
Applicant |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”.
2. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated and filed on 13 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 11 October 2019 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003369_2019_files/the_Board's_Decision.pdf
2. The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the available grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board refused the applicant’s appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 19 September 2018 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim.
Amendment
3. In Form 86, the applicant named “The Torture Claims Appeal Board / Non-Refoulement claims Petition office” as the proposed respondent, when only the Board should be the putative respondent.
4. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.
5. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”.
The applicant’s case
6. It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.
7. In sum, the applicant claimed for non-refoulement protection because he was at risk of being seriously harmed or even killed in Nigeria by a group of gangsters who wanted to silence him from being a police witness against them.
Oral hearing
8. The applicant requested for an oral hearing and his case was heard on 19 June 2025.
9. At the hearing, the applicant merely said that he did not want to return to his home country to be killed, the Board had already considered all the matters and he had nothing further to say.
Grounds for judicial review
10. The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).
11. The applicant stated in Form 86 that he did not want to go back to Nigeria. He wanted the court to help him not to be deported back to Nigeria. He was married in Hong Kong.
12. In his supporting affirmation dated 13 November 2019, the applicant stated that he would be killed if sent back to Nigeria, not even sustaining injury as stated by the Board. He strongly believed that if he were back, he would be a dead person. Besides, he was married to his newly wedded wife here in Hong Kong. They were happily living together as husband and wife since then.
13. Thus, the applicant was merely reiterating the alleged danger he would face if refouled. He did not advance any valid ground for the intended judicial review.
Discussion
14. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).
15. In assessing the appeal by the applicant, the Board held an oral hearing on 2 August 2019. The applicant was present and was given the chance to present his case to the Board in person.
16. After detailed questioning of the applicant, the Board decided to afford the applicant the benefit of the doubt and accepted that his claimed account of past events were mostly based on actual events and fact.
17. However, the Board found that the gangsters were and would be at all relevant times private individuals and not public officials, and were not and would not be acting in an official capacity in the context of the circumstances in which the applicant claimed to be at risk of being subjected to harm. The Board also found from reliable country of origin information that while it might not be perfect, Nigeria had an appropriate system of criminal law with a reasonably effective and impartial police force and judicial system, and that people who broke the law were generally subject to prosecution. The Board found that the Nigerian government had taken reasonable measures to protect the lives and safety of its citizens, and that a reasonable system of state protection would be available to the applicant should he need it.
18. Further, the Board found that the incident that the applicant witnessed happened 4 years before the Board’s Decision. Neither the applicant nor his friends who witnessed the armed fight knew any of the gangsters. The applicant was unlikely to identify any of the gangsters whom he had seen for just a few seconds and never met after. Neither the applicant nor his friends had made any official statements to the police and did not become involved with or part of any police investigation or prosecution case against the gangsters. The Board thus considered that the risk of the applicant continuing to be a person of adverse interest to these unknown gangsters was remote and the chance or risk of them subjecting the applicant to serious harm was also remote and far-fetched.
19. The Board also considered internal relocation to be viable for the applicant. The Board found that the applicant could reasonably live without fear of harm or undue hardship if he were to relocate to a large city other than his home area, for example, Lagos, Ibadan or Port Harcourt, or to Abuja where his family were residing in. The applicant, as a resourceful person with many years of experience in trading and the skills and ability to successfully relocate to a new city, could reasonably live without undue hardship upon relocation to other areas in Nigeria to avoid, reduce or negate any perceived risks.
20. Thus, the Board concluded that the applicant failed to establish any real risk of harm, torture, arbitrary deprivation of life or persecution and rejected his claim for non-refoulement protection.
21. The applicant’s danger as stated in his affirmation has therefore been duly assessed by the Board. The fact that he is now married in Hong Kong is not a ground for judicial review at all.
22. The finding of facts was within the sole ambit of the Board. The Board was entitled to come to its conclusion. If the applicant intends to challenge the finding of facts of the Board, it is not permissible in an application for judicial review. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
23. Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.
24. As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.
Conclusion
25. For reasons aforesaid, the Leave Application is dismissed.
Dated the 2nd day of September 2025
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( Irene LEE )
for Registrar, High Court
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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
Notes for the applicant:
If leave has been granted, the applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent/Handed to the applicant/the applicant’s solicitors
on: 2 September 2025
Applicant’s ref. no:
Nil |
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Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on:
2 September 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 13755/18/10/97/NI233
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 2524/18
(Formerly RBCZ 10714/17)
Department of Justice,
Senior Assistant Law Officers
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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