ANYIM INNOCENT ODICHUKWUNMA v. TORTURE CLAIMS APPEAL BOARD

CACV 390/2026, [2026] HKCA 1108

On Appeal From [2026] HKCFI 1895

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 390 OF 2026

(ON APPEAL FROM HCAL NO. 1159 OF 2021)

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J U D G M E N T

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Hon Eugene Fung J (giving the Judgment of the Court):

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Michael Wong (“the Judge”) given on 1 April 2026[1] refusing his application for leave to apply for judicial review against the decision dated 27 July 2021 of the Torture Claims Appeal Board (“the Board”).  The Board had dismissed his appeal against the decision dated 6 May 2020 of the Director of Immigration (“the Director”) which in turn had rejected the applicant’s non-refoulement claim having regard to the torture risk,[2] BOR 3 risk,[3] persecution risk[4] and BOR 2 risk[5] grounds.

Background

2.  The applicant is a national of Nigeria born in 1980.  He last arrived in Hong Kong as a visitor on 29 September 2019.  He subsequently overstayed and surrendered to the Immigration Department on 25 October 2019.  He lodged his non-refoulement claim by written representation on the same day.  The basis of his claim was that if he were to return to Nigeria, he would be harmed or killed by two groups of people: (1) a loanshark named Usman Abubaka (“Usman”) in relation to a US$150,000 loan which the applicant had failed to repay; (2) his fourteen half-brothers (the “Siblings”) as they blamed the applicant for causing the death of their parents who were allegedly killed on Usman’s order.  Details of the applicant’s background, the basis of his claim and the Board’s reasons for rejecting his appeal have been set out in the Board’s decision.[6]  We will not repeat them.

3.  By a Form 86 filed on 16 August 2021, the applicant applied for leave to judicially review the Board’s decision.  He did not advance any specific ground of judicial review in his Form 86 but only stated in his supporting affidavit that he wanted a review of both the decisions of the Board and the Director.  At the oral hearing on 5 March 2026, the applicant told the Judge that his brother was killed in 2024 and sought to adduce a video to prove that.  The Judge refused his request, explaining that the court could not receive new evidence.  For reasons set out in [14] to [32] of a Form CALL-1 dated 1 April 2026, the Judge dismissed the applicant’s leave application as he failed to advance any grounds to challenge the Board’s decision, which contained no errors of law, procedural unfairness or irrationality.  Further, the Judge held that it was not open to the applicant to challenge the Director’s decision as it was superseded by the Board’s decision on appeal. 

Appeal to this Court

4.  On 14 April 2026, the applicant filed his Notice of Appeal against the Judge’s decision, where he stated that he would face persecution if he were to return to Nigeria and that the country-of-origin information (COI) in the decision was misleading.  He further stated that there is no state protection in his home country and that internal relocation is not available. 

5.  The applicant has lodged written submissions in which he repeated the basis of his fear and his reliance on the applicable grounds on non-refoulement protection.  He further stated that (1) the Board and the Director failed to consider the supporting documents he submitted to prove his claim and the risk of harm; (2) the Board and the Director failed to give proper weight to the presence of state acquiescence in his claim, and relied on outdated COI posted by the Islamist government of Nigeria; (3) the option of internal relocation is not reasonable; and (4) he could not resort to state protection as there is corruption in the society of Nigeria.  

6.  At the hearing, the applicant stated that it is not safe for him to go back to Nigeria because his enemy has also killed his younger brother.

Discussion

7.  In assessing the merits of the appeal, we have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

8.  Further, it is well-established that assessments of evidence, country of origin information (COI), risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are primary decision makers.  The court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

9.  In the present case, the Board rejected the factual basis of the applicant’s claim as his evidence was unreliable and fraught with contradictions and discrepancies.  Particularly, the Board found that the applicant’s evidence as to the purpose and preparation of the deed of mortgage, which pledged eighteen plots of family land to Usman, was internally inconsistent.  This cast doubts as to whether the deed was indeed created as alleged.  Further, the Board did not accept the applicant’s claim that Usman was able to control the Nigerian police and army, when Usman did not even know that the family land had been resumed by the government.  Fundamentally, there was no reliable evidence that Usman would harm or kill the applicant, despite Usman’s intention to harm the applicant for years before the applicant left Nigeria.  As regards to the applicant’s fear of his Siblings, the Board found that although the applicant was beaten up by his Siblings in June 2017, they failed to locate him ever since and were oblivious to his whereabouts.   

10.  As regards to state protection, the Board found that the applicant had never reported any threats to the police.  While it acknowledged that corruption is present in the Nigerian police force, the COI showed that there are avenues to address corruption complaints in Nigeria, including the Independent Corrupt Practices Commission, the National Human Rights Commission and the courts.  The Board alternatively found that internal relocation to cities within Nigeria such as Benin City or Port Harcourt would be reasonable, as the applicant is an able-bodied and educated adult with work experience.

11.  Further, the Board rejected the applicant’s belated claim that by a presidential order made in May 2021, Igbo Christians such as him who returned to Nigeria would be arrested or killed by the police or the government.  The Board found that his claim was bereft of detail and he could not specify when the alleged presidential order was made or whether it was relevant to his circumstances.  The Board thus concluded that the applicant had failed to satisfy the requisite threshold entitling him to protection under any of the applicable grounds.

12.  In this appeal, the applicant raised a number of grounds to challenge the Director’s decision.  As held by the Judge and repeated by this court, the decision of the Director is no longer susceptible to judicial review once an appeal to the Board has been pursued and the Director’s decision was superseded by the Board’s decision: Re Moshsin Ali [2018] HKCA 549.  Therefore, it is not open to the applicant to challenge the Director’s decision in this appeal.  We now address the applicant’s grounds of appeal in turn.

13.  First, the applicant contended in his written submissions that the Board failed to consider the supporting documents he submitted to prove his claim and the risk of harm. However, he had not identified any specific document that the Board had overlooked nor had he explained how such document would have altered the Board’s decision.  Nevertheless, we noted that the Board was fully cognisant of the documents relied upon by the applicant, including the deed of mortgage and the alleged death certificates of his parents ([40] to [43] of its decision).  The Board gave detailed reasons for finding that these documents did not assist the applicant’s case and expressed its doubts as to the authenticity of the death certificates.  Thus, there is no merit in this argument.

14.  Second, contrary to the applicant’s assertion that the Board failed to give weight to the presence of state acquiescence, the Board had considered the issue of state acquiescence at [63] to [65] of its decision.  Fundamentally, the Board found that the applicant had never reported his problems to the police or any other authority. As such, there was no evidence that the state had any knowledge of his situation, and therefore no basis for a finding of state acquiescence.  As to the complaint that the Board had relied on outdated COI, we note that the COI materials cited by the Board were from reputable international sources, including the Interpol and the Nigerian Police Force’s official website.  The applicant’s vague and unsubstantiated assertion that the COI was outdated or emanated from an “Islamist government” is purely speculative.  The applicant failed to demonstrate that the Board’s reliance on the available COI was irrational or unreasonable.

15.  Third, regarding the applicant’s complaint that internal relocation is not reasonable, we would first point out that since the applicant failed to make out his case on any of the available grounds, it was not strictly necessary (as the Board observed) to address the option of internal relocation.  The applicant had all along advanced his case on the basis that it was a private loan dispute.  The Board was entitled to assess the viability of internal relocation based on the nature of the claim, the applicant’s education background and work experience.  We see no arguable case that the Board had erred in law in so doing.

16.  Fourth, as regards to the applicant’s submissions that the Nigerian police is corrupt, the Board acknowledged at [59] of its decision that corruption and abuse of power are problems affecting the police in Nigeria.  However, the Board also considered the COI showing ongoing efforts to improve police accountability and accessibility, and assessed that there are avenues for the applicant to raise complaints about police corruption.  This assessment was open to the Board having regard to the relevant country information before it.  Crucially, the applicant never actually sought protection from the police or the authorities.  All in all, the applicant failed to demonstrate any errors of law, procedural irregularity or irrationality in the Board’s decision.

17.  The applicant has not identified any error in the decision of the Judge or put forward any viable ground of appeal against the Judge’s decision.  We are satisfied that the Judge gave proper and adequate reasons for his conclusion that the intended judicial review had no realistic prospect of success.  There is no proper basis for us to disturb the Judge’s decision.  

18.  Accordingly, we dismiss the appeal.

[1]    [2026] HKCFI 1895

[2]    This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3]    This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4]    This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5]    This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.