EZIOKWU CHRISTIAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 463/2020

[2025] HKCFI 3167

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 463 of 2020

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 oral submissions by the Applicant in open court;

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

Observations for the Applicant:

Introduction

1.  By a “Notice of application for leave for judicial review” in the prescribed Form 86 filed on 20 March 2020, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 10 January 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 2 August 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000463_2020_files/the_Board's_Decision.pdf

2.  The basis of the applicant’s claim is that he would be harmed or killed by the Nigerian government or security forces, due to his membership in the Indigenous People of Biafra (“IPOB”) separatist group. The applicant is a Christian of the indigenous Igbo ethnicity from Anambra State.

3.  The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.  At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 24 April 2025. The applicant attended the hearing in person. After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Discussion

5.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

7.  In his Form 86 and supporting affirmation, the applicant did not raise any grounds for judicial review.

8.  At the hearing, this court reminded the applicant that he has not provided any grounds for judicial review in his papers, and asked him if he had any grounds he wished to submit in support of the Leave Application. Despite having been told that he has not submitted any grounds for the intended challenge, the applicant maintained that he had nothing to say.

9.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[3]

10.  In the present case, after the Board had asked the applicant a few clarifying questions, it found that the applicant’s evidence was mostly hearsay and not supported by evidence. It also found that the applicant had never been ill-treated; or suffered any physical injuries; or wanted by the Nigerian government as a member of the IPOB. The Board also found the applicant’s account as how the church had financially supported him during his more than 3 years’ delay in the lodging of the non-refoulement claim until police not possible. All in all, the Board found that the applicant’s account was only bare allegations consisted mostly of speculations and hearsay information. When considering the availability of state protection, the Board took into account the country of origin information (“COI”) that corroborated the applicant’s assertion that in Nigeria, the situation was unstable and there were the human rights abuses. It, however, also considered objective COI indicating that reforms had been and were ongoing in Nigeria. After having considered all the materials, the Board concluded that state protection would be available upon the applicant’s return to Nigeria. The Board accepted that the applicant was an ordinary member of the IPOB without holding any official position. It found that despite having participated in the demonstrations, the applicant never suffered any physical injuries. It therefore concluded that the applicant faced no previous ill-treatment, and hence could not even meet the requirement of attaining the requisite minimum level of severity. The Board therefore found that the applicant would face no real risk of harm of being subjected to any ill-treatment if refouled. In addition, the Board found that the applicant’s fear was from the local security forces and it was a localized problem in “Anamba State”. It, thus, concluded that internal relocation would be viable, especially in light of the applicant having previously resided in Lagos.

11.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. It is noted that when concluding the availability of the state protection, the Board had taken into account one of the ICO materials that seemed to suggest that IPOB was declared a terrorist organization[4] . I am satisfied that the Board is entitled to come to this conclusion in view of all other materials available and the applicant’s past association with the IPOB as a mere ordinary member, the applicant’s original purpose of coming to Hong Kong, his delay and the circumstances leading to the lodging of the non-refoulement claim and the evaluation of the applicant’s evidence. The Board is entitled to find that the applicant’s claim was based on speculations and hearsay. Notably, the applicant has provided absolutely no grounds to challenge the Board’s Decision whether on paper or at the hearing. The applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[5].

Order

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

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