|
HCAL 1159/2021
[2026] HKCFI 1895
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1159 OF 2021
|
BETWEEN
|
| |
Anyim Innocent Odichukwunma |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board |
Putative |
| |
|
Respondent |
| |
and |
|
| |
Director of Immigration |
Putative |
| |
|
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 16 August 2021, 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 27 July 2021. The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001159_2021_files/the_Board's_Decision.pdf
2. The Board found that the applicant was unable to make out his claims for non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 6 May 2020 (“the Director’s Decision”), which rejected the applicant’s claim for non-refoulement protection, and confirmed the same.
Amendment
3. In Form 86, the applicant named the Board as the putative respondent but spelt the Board’s name wrong.
4. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”.
The applicant’s case
5. 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.
6. In sum, the applicant claimed for non-refoulement protection because if refouled to Nigeria, he would be at risk of harm, ill-treated or killed by (1) a loanshark named Usman Abubaka (“Usman”) in relation to a loan which the applicant had failed to repay; and (2) his siblings (ie fourteen half-brothers) (“the Siblings”) who blamed him for having caused the death of their parents.
Oral hearing
7. The applicant requested for an oral hearing of his Leave Application and his case was heard on 5 March 2026.
8. When this court asked him for the grounds for his intended judicial review, he merely said that he had already presented to the Board his problem related to a huge loan amounting to USD150,000 borrowed from a loanshark. He had entered into a mortgage agreement with the loanshark but when the loanshark learnt that he could not get the applicant’s family land, the loanshark was angry and killed the applicant’s parents.
9. The applicant added that his brother was killed too in 2024. Hence, his life was in great danger and could not return to his own country. The Board was wrong in refusing his claim for protection. The applicant said that he had a video and proof that his brother was shot and buried. However, this court explained to him that it was not for this court to receive new evidence concerning his non-refoulement claim.
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 did not advance any ground for his intended judicial review in Form 86. In his supporting affidavit dated 16 August 2021, the applicant stated that he wanted a judicial review of both the Director’s Decision and the Board’s Decision.
12. However, the applicant only mentioned the Board’s Decision as the subject matter of the Leave Application in Form 86. In any event, the Director’s Decision was not susceptible to judicial review anymore, as the Board’s Decision had superseded the Director’s Decision (see Re Moshsin Ali [2018] HKCA 549)
13. As aforesaid, the applicant did not advance any grounds for his intended judicial at the oral hearing of the Leave Application. He only repeated his alleged danger, which had been presented to the Board, and wanted to show evidence that his brother was killed in 2024.
Discussion
14. First of all, the applicant’s assertion at the oral hearing that his brother was killed in 2024 was not presented to the Board when it was dealing with the applicant’s appeal/petition in 2021. The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090, that the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.
15. Further, as held in Nupur Mst v Director of Immigration [2018] HKCA 524, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition.
16. Thus, the applicant cannot rely on any materials not placed before the Board as a ground for his intended judicial review, and there is no reason for this court to receive new evidence and re-assess the applicant’s non-refoulement claim at this stage.
17. His complaint that the Board was wrong without identifying what was wrong with the Board’s Decision cannot be a valid ground for judicial review.
18. 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, supra).
19. Thus, despite the fact that the applicant did not advance any ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness, or irrationality as aforesaid.
20. In assessing the appeal/petition by the applicant, the Board held an oral hearing on 8 June 2021. The applicant was present and was given the chance to present his case to the Board in person.
21. As can be seen from the Board’s Decision, the Board assessed the applicant’s claimed risks from both Usman and the Siblings. The Board considered that the number and nature of inconsistencies and contradictions in the applicant’s evidence were sufficiently serious so as to undermine the reliability of the applicant’s story (see paragraph 42 of the Board’s Decision).
22. The Board found no, or no reliable evidence to show (and the Board did not accept) that (1) Usman or his people would harm or kill the applicant were he to return to Nigeria; (2) the Siblings would harm or kill him if he were to return to Nigeria; (3) the applicant faced risk throughout Nigeria; (4) the applicant suffered injuries to the required severity; and (5) the state of Nigeria was unwilling to help the applicant for a Convention reason (see paragraph 43 of the Board’s Decision).
23. The Board also found that the applicant’s dispute with both Usman and the Siblings were private matters. Both Usman and the Siblings were non-state actors and they did not target him for any Convention reasons. The applicant’s claim that Usman was a state-actor/ public figure was rejected. The Board found no element of state acquiescence in the applicant’s disputes with both Usman and the Siblings.
24. The Board accepted that country of origin information (“COI”) showed that corruption and abuse of power had been and continued to be major problems affecting the police in Nigeria. However, COI also showed that the Nigerian Police had a mission to improve the performance of the police, which remained ongoing, the purpose of which was to make the officers more accountable, disciplined and professional, and importantly to make it easier for members of the public to access the police. The applicant had in fact never reported his problems to the police. His assertion that complaining to the police would be futile was just his speculation. The Board found that sufficient state protection was available to the applicant if he were refouled to Nigeria.
25. The Board also considered the applicant’s late oral submission at the Board’s hearing, which had not been previously raised in the papers of the applicant’s non-refoulement claim. The applicant claimed that Igbo Christian people who returned to Nigeria would be immediately targeted to be arrested and/or killed by the police/government. He also stated that by an order of the President of Nigeria in around May 2021, such fate would be met by any such persons who were living abroad. As can be seen in paragraphs 97 to 102 of the Board’s Decision, the Board had fully considered this alleged risk but was not satisfied that the mere fact of the applicant being an Igbo Christian would, by those characteristics alone, make him vulnerable to being harmed or killed by the Nigerian government or police.
26. Thus, the Board found that the applicant could not make out a case for protection on any of the applicable grounds under the USM.
27. Given its findings as summarised above, the Board noted that it was not strictly necessary to deal with the question of internal relocation. Nevertheless, the Board did assess the viability of internal relocation for the applicant as a matter of caution.
28. The Board found the applicant’s assertions that he could not relocate safely anywhere within Nigeria as merely speculative. The Board found that if the applicant was afraid to return to his home area, there was no reason why he could not relocate to other parts of Nigeria and stay there without undue hardship. The applicant was 41 years old at the time of the Board’s hearing and he was able-bodied with education up to secondary level with around 20 years of work experience, including being the director of his own business. The Board was of the view that southern cities such as Benin City or Port Harcourt might be suitable places for the applicant to relocate, based on available COI and because the applicant had not experienced any impediment in both places, which were sufficiently distant from his home area.
29. Thus, the Board concluded that the applicant did not face any real risk of any of the proscribed forms of harm and had not substantiated a case for non-refoulement protection.
30. The finding of facts, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
31. 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.
32. 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
33. For reasons aforesaid, the Leave Application is dismissed.
Dated the 1st day of April 2026
| |
( Teresa NG )
for Registrar, High Court
|
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:
|
|
|
|
|
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)).
|
|
Sent/Handed to the applicant/the applicant’s solicitors
on: 1 April 2026
Applicant’s ref. no:
Nil |
|
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: 1 April 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 16941/20/5/30/NI319
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 47/20
(formerly RBCZ 10012/20)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
|