OGBU EZE FIDELIS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 438/2020

[2025] HKCFI 2206

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 438 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;

1.   The Form 86 is amended on the court’s own motion.

2.   The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 17 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 17 January 2020 (“Board’s Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) dated 31 August 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds except torture risk^[1] which was covered by a prior decision of the Director dated 16 May 2013.  The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000438_2020_files/the_Board's_Decision.pdf

2.  In his Form 86, a residential address was stated to be the name of the proposed respondent and the interested party.  Since the Board should have been the proper respondent and the Director the proper interested party, the Form 86 will be accordingly amended.

3.  The basis of the applicant’s claim is that he would be harmed or killed by his stepmother, who was intent on usurping his position as the heir to his late father’s estate.  As an Igbo Christian, he also fears discrimination and ill-treatments by the Islamic Fulani herdsmen and Boko Haram.  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, the court scheduled a hearing on 15 May 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.[2]  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[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit.   

7.  In his Form 86, the applicant did not raise any grounds for judicial review.  In his supporting affirmation, he stated that his life would be in danger and anything could happen to him if he were to be returned to Nigeria. He did not raise any other grounds in his affirmation.

8.  At the hearing, this court asked the applicant whether he had any further grounds he wished to submit in support of the Leave Application.  The applicant had nothing to say apart from informing this court that he has a fiancée, who is a Hong Kong resident, and is planning to get married next month.

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.[4]

10.  In the present case, due to the extensive inconsistencies throughout his evidence, the Board found that the applicant’s evidence was unreliable and not credible.  The Board drew the applicant’s attention to these inconsistencies but he was unable to provide a satisfactory explanation.  As a result, the Board found that there was no real risk of harm, and rejected his claim.  These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

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. Despite having requested the holding of a hearing, the applicant submitted nothing in connection with the grounds of the intended challenge.  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].

Orders

12.  The Form 86 is amended on the court’s own motion.

13.  The Leave Application 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