ADEJE ONWUNSO BRENDA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 223/2023

[2026] HKCFI 3100

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 223 of 2023

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 the Applicant being absent in open court;

1.  The Applicant’s Form 86 be amended to state the TCAB Decision as the decision in respect of which relief is sought, name the TCAB as the putative respondent and the DOI as a putative interested party; and

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 14 February 2023 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision dated 2 February 2023. He named the Director of Immigration (the “DOI”) as the proposed respondent and named the Immigration Department as an interested party.

2.  From the case record, there was a decision by the Torture Claims Appeal Board (the “TCAB”) dated 2 February 2023 (the “TCAB Decision”) which affirmed a decision by the DOI dated 3 January 2022 in refusing the Applicant’s non-refoulement protection claim.

3.  I amended the Form 86 on my own motion to state the TCAB Decision as the decision in respect of which relief is sought, name the TCAB as the putative respondent and the DOI as a putative interested party.

4.  The Applicant requested for a hearing but he was absent at the scheduled hearing on 14 May 2026. From the court record, the Notice of Hearing dated 16 April 2026 was sent to an address stated in the Form 86 and remained unchanged in the address update from the Immigration Department on 9 March 2026.

5.  However, as it turned out, the Notice of Hearing was subsequently returned on mail.

6.  Bearing in mind what Barma JA held in Re Abdus Salam [2019] HKCA 1091 at [19], i.e. in an application for leave to bring judicial review proceedings, it is not essential for the applicant to attend an oral hearing, when the applicant fails to turn up at an oral hearing he/she had requested, it should be regarded as a decision to forego the right to the requested oral hearing and the court can deal with the application on paper. Applying the logic, if the Applicant failed to provide an updated address to receive notices from the court, it also signals a disregard of, or indeed a decision to forego, the right of attending an oral hearing.

7.  I therefore decided to proceed to deal with this application on paper notwithstanding the Applicant’s absence at the hearing.

Background

8.  The Applicant is a national of Nigeria. He seeks non-refoulement protection on the basis that if he was returned, he would be harmed or killed by the government due to his political affiliation. His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

9.  In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. This 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 TCAB (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anr (2007) 10 HKCFAR 676).

10.  In his affidavit filed in support of this application, the Applicant raised a number of matters to submit that this application has a realistic prospect of success.

11.  Firstly, at [1-6] thereof, the Applicant only reiterated his factual case and exhibited a number of online articles and reports relating to the situation of the political ground that he allegedly was affiliated with. However, these are but mere repetition of his case, and the exhibits are general in nature and do not connect any issue described therein to the Applicant himself.

12.  Then, at [7-11] thereof, the Applicant sought to challenge the TCAB’s factual findings. As explained above, this court should not and will not usurp the role of the TCAB as the primary decision-maker, and insofar as factual findings are concerned, unless there were anything irrational, this court will not intervene by way of judicial review. I see nothing irrational in the TCAB’s observation on the inconsistencies in the Applicant’s case, its comment thereon and findings as a result.

13.  Then at [12] thereof, the Applicant asserted that the TCAB had failed to consider the risk faced by people of his political affiliation. This is both factually incorrect, as the TCAB did consider the issue, and also unparticularised as to how such risk is faced by the Applicant himself.

14.  Then at [13-14] thereof, the Applicant asserted that the TCAB had failed to consider relevant materials or had taken into account irrelevant materials. However, what the Applicant has pointed to are mere repetition of his case and evidence before the TCAB.

15.  Lastly at [15] thereof, the Applicant asserted that the TCAB had failed to apply the applicable principles, procedures and practices. There is however no particular whatsoever, hence the assertion is but a bare one.

16.  In gist, there is nothing in the above that establishes or supports any grounds for judicial review.

17.  Looking at the TCAB Decision, the TCAB took into consideration the Applicant’s case and evidence [3-12], including his testimony at the hearing before it [30-32] and relevant Country of Origin Information [33-42].

18.  The TCAB bore in mind the correct legal principles in respect of each of the four applicable grounds under the USM [16-29].

19.  After thorough analysis and assessment, the TCAB came to find and conclude that none of the alleged risks or grounds was made out [43-60].

20.  Further, the TCAB found and concluded that internal relocation would in any event be available [61-63].

21.  I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

22.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.

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