OLANIYI KEHINDE TAJUDEEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 620/2021

[2026] HKCFI 2706

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 620 of 2021

Application for Leave to Apply for Judicial Review

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

Following:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 4 May 2021 for leave to apply for judicial review (the “leave application”) of a decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 26 April 2021 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 6 August 2019 (the “Notice”), refusing his application for non‑refoulement protection.

The Applicant’s claim

2.  The Applicant is a Nigerian national, now aged 52.  He arrived in Hong Kong on 16 March 2017 and overstayed since 31 March 2017.  But according to the record in the Immigration Department, he had departed Hong Kong on 28 March 2017.  He was arrested on 3 March 2019.  Then, he lodged a non-refoulement claim by written signification on 8 March 2019.  His claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4].  It was rejected by the Director’s Notice.  His appeal against the Notice was dismissed by the Board’s Decision.  He now applies for leave to apply for judicial review of that Decision.

3.  His personal background, the factual background leading to the present application, the basis of his claim and the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below[5] for reference.  In gist, he claims he will be harmed or killed by the Nigerian government in reprisal for his association with the People’s Democratic Party (the “PDP”), if returned to Nigeria

4.  The Applicant claimed that he began supporting the PDP when he was 18 and became a member of the youth wing of the PDP.  He was active.  He joined in campaigns, rallies and voted during elections.  He became the chairman of the youth branch of PDP in his area, Cokerakuda.  He had more than 300 members under him. 

5.  The PDP and the All Progressives Congress (the “APC”) are rival political parties.  The APC had been harassing supporters of the PDP since it became the ruling party in 2015.  The APC and the police caused trouble at PDP events.  The police fired shots in the air and announced that they were arrested PDP supporters as trouble makers.  But the Applicant had suffered no harm and there was no evidence that he was a specific target of the APC or the state.  He also produced no evidence of massive, gross and flagrant violation of human rights in Nigeria.

6.  The Applicant came to Hong Kong on business in March 2017.  One day, his brother called him and told him that his friends in the PDP were arrested and he would be arrested next.  His brother said it was safe in Hong Kong and told him not to return.  Thus, the Applicant overstayed in Hong Kong and did not return to Nigeria.  His family members are safe as they are not involved in politics.

The finding of the Board

7.  The Applicant claimed that he had been supporting the PDP since he was 18 and had became the chairman of the youth branch of PDP in his area with 300 members under him.  Yet, given his claimed involvement in the PDP, he could not state the political position of the party and was not sure of the party colours.  The Board found his knowledge of the party is surprisingly sparse and erroneous.  The Applicant accepted he had not suffered any personal attack on him specifically.  Given the discrepancies between his oral testimony and documentary evidence, the Board did not find his evidence that he was likely to be subjected to political prosecution as an office bearer of the PDP credible and attached very little weight to that allegation.  It did not consider the acts of the police amounted to ill-treatment which attained the minimum level of severity or fell within the meaning of ‘torture’ under section 37U(1) of the Immigration Ordinance.  Nevertheless, it considered his case in its entirety and against the country of origin information (“COI”).  It accepted that state protection and internal relocation are feasible.  It found the Applicant is not a person of interest to the Nigerian government and there would be no risk of torture if he were to be returned to Nigeria.  Applying the law applicable to non-refoulement protection, it found the Applicant is not entitled to non-refoulement protection under any of the four applicable grounds under the USM.  Hence, it dismissed his appeal against the Notice.

Legal principles applicable to judicial review

8.  The function 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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[6].

Grounds for judicial review

9.  At the hearing, after the above legal principles had been explained to him, the Applicant confirmed that he had no complaint about errors of law in the Decision, procedural unfairness or irrationality in the Decision and would leave it to the Court to scrutinize the Decision for those vitiating elements.  He emphasized that his life would be at risk, if refouled and asked the Court for a rehearing.  That is a direct challenge of the Board’s finding that he would not be at risk of torture, if refouled.  This is impermissible, save for errors of law, procedural unfairness and irrationality in the Decision.  As for his request for a rehearing, for reasons as mentioned in the preceding section, the court in an application for judicial review has no jurisdiction to rehear his claim and make finding of facts.  It may only scrutinize the Board’s Decision for those three vitiating elements. This Court will re-visit this issue in its overall scrutiny of the Board’s Decision. 

10.  In his supporting affirmation, the Applicant advanced eight points under ‘Grounds on which relief is sought’.  But, only Points 1, 6 and 7 may be treated as grounds of application, the other five points are just reiteration of the Applicant’s case and the procedural steps taken by him in the pursuit of his claim.

11.  Under Point 1, the Applicant complained that the Board was in breach of procedural fairness by (i) unlawfully fettering its discretion by refusing his appeal on the grounds that he did not satisfy the requirement; (ii) acting in a procedurally unfair manner in dealing with the appeal; (iii) making the Decision which was unreasonable or irrational in the public law sense or is the result of procedural errors or unfairness; and (iv) failing to meet the greater care and duty owed to a self-represented claimant. These are bare allegations unsupported by any particulars of the breach.  As such, it is impossible to evaluate these grounds.  The Court shall re-visit these issues in its overall scrutiny of the Decision.

12.  Under Point 6, the Applicant alleged that he was not given a fair opportunity to keep forward his submissions in an oral hearing nor was he invited to submit written submissions.  When asked for elaborations, the Applicant said these grounds were prepared by his lawyer a long time ago and he could not remember the circumstances.  Having read the Decision, the Court found evidence of interaction between the Applicant and the Board.  The Applicant bears the burden of proving his ground.  As he could not even recall the surrounding circumstances, this ground is not substantiated.

13.  Under Point 7, the Applicant claimed that the Board had significantly relied on source of news which is not officially recognized or is simply hearsay and relied on outdated cases.  In answer to the Court’s request for particulars, the Applicant could not give any, but made a general allegation that the government would not allow broadcast of new, implying there was news censorship in Nigeria.  He said his colleague was killed and not reported.  These are bare allegations unsupported by particulars.  The news of the murder of his colleague was not even mentioned in his original claim.  The COI referred by the Board are all from authoritative and credible sources, such as Wikipedia, The 2018 Country Reports on Human Rights Practices: Nigeria published by the United States Department of State, The Country Policy and Information Note Nigeria: Actors of protection, issued by the United Kingdom Home Office.  In the absence of adequate particulars, it is impossible to assess the effect of such un-particularised allegations on the Board’s Decision.  

14.  In the absence of any specific grounds of application, the court in a judicial review could only scrutinize the Decision for errors of law, procedural unfairness or irrationality.

Overall scrutiny

15.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board analysed the evidence carefully and tested it against common sense, inherent probability and the COI.  It considered the Applicant’s case in its entirety and assessed his claim on the basis of the case as he asserted.  On his own admission, the Applicant had not been attacked.  The Board found he is not a person of interest to the Nigerian government and there would be no risk of torture if he were to be returned to Nigeria.  On the basis of the COI, the Board was satisfied that state protection and internal relocation are available.  It gave full reasons for its finding.  This is a finding of fact solely within the realm of the Board.  On the evidence, it was open to the Board to make the finding as it did. Applying the law applicable to non-refoulement protection to the facts it found, the Board came to the conclusion that the Applicant is not entitled to non-refoulement protection under any of the four applicable grounds under the USM.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.

Conclusion

16.  For the above reasons, the Applicant’s leave application is refused.

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

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