ANYIM POLYCARP NGOZI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2434/2019

[2025] HKCFI 4064

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2434 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

	consideration of documents only;   or
	consideration of documents and oral submissions by the Applicant in open court;

1.  The Form 86 be amended making the Torture Claims Appeal Board/
Non-refoulement Claims Petition Office the proposed respondent; and

2.  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 22 August 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Director of Immigration (the “Director”) dated 2 August 2019. In his supporting affidavit, he annexed a copy of a decision from the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 2 August 2019 (the “Decision”) dismissing his appeal against the decision of the Director in his Notice of Decision dated 11 December 2018 (the “Notice”), refusing his application for non-refoulement protection.  It is clear that his intention is to seek judicial review of the Decision of the Board dated 2 August 2019 and not the decision of the Director.  Hence, on its motion, the Court amended his Form 86 making the Board the proposed respondent.  

2.  The Applicant is a Nigerian national.  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 [1] for reference.  In gist, he claims that he will be harmed or killed by the Nigerian authorities if returned to Nigeria because of his involvement in the Movement for the Actualization of the Sovereign State of Biafra (“MASSOB”).  

3.  The Applicant testified before the Board.  He claimed he was elected as a youth leader of the MASSOB in his area.  In or about mid December 2007, while he was having a meeting with approximately 80 members of MASSOB at the town hall, the police stormed in, firing guns in the air, injuring 15 members and killing 10 members (the “2007 Incident”).  He was arrested and detained for two weeks during which he was ill-treated.  He was kicked, whipped and subjected to electrocution many times.  He was subsequently released with no charge on condition that he would not participate or convene any meetings, rallies or protests or he would be killed.  His uncle took him to a hospital for treatment.  It took him over ten months to recover his physical movement.  During his absence, his deputy took charge of many of his duties in MASSOB.  On 18 December 2008, he travelled to Hong Kong for business. 

4.  While in Hong Kong, he was told that the Nigerian government had commenced a serious crackdown on the leadership of MASSOB and many of his comrades had been arrested and detained indefinitely.  Both he and the new leader of MASSOB had a similar objective as the Indigenous People of Biafra (“IPOB”).  He was advised not to return to Nigeria.  

5.  On 14 September 2017, the Nigerian government deployed troops and police in the Eastern region of Nigeria.  Since then Biafraland has been under siege with hundreds of youth killed by the security forces and their leaders killed or detained. 

6.  The Board extensively researched into country of origin information of Nigeria (“COI”) at the material times.  It accepted there were fighting and violence between government security forces and some groups fighting for the independence of Biafra from Nigeria and that there were considerable evidence of mistreatment of Biafran activists and persons engaging in protest activities.  However, it noted that the Applicant was in Hong Kong for almost ten years before he applied for non-refoulement protection.  It did not accept his explanation that that was due to his ignorance.  Despite diligent researches, the Board could not find any evidence of a crackdown on pro-Biafra groups in December 2008 or 2009 as alleged by the Applicant.  The location of the MASSOB branch in Onitsha he gave to the Board was the same as his own residential and business address as stated in the non-refoulement claim form.  When confronted by the Board, he explained that his residential address and MASSOB’s addresses are on different floors of the same plaza.  The Board was unable to accept that.  The Applicant produced a letter purportedly from MASSOB certifying his membership, but the letterhead referred to itself as MASOB.  He could not offer any explanation for the misspelling.  The Board rejected the letter as not genuine.  It also found the location of the meeting which resulted in the 2007 Incident, when the meeting took place, and the length of time between the meeting and his departure for Hong Kong inconsistent.

7.  Because of the above, the Board came to the conclusion that the Applicant was not a truthful witness and he manufactured his claims for non-refoulement protection in Hong Kong.  It did not accept he was a member of MASSOB or that he was arrested or detained for two weeks arising from the 2007 Incident or that he was in hiding and “secretly” operating his business. Applying the law applicable to non-refoulement protection to the above finding, the Board found the Applicant had failed to establish his claim to non-refoulement protection under any of the grounds under the Unified Screening Mechanism (the “USM”) and dismissed his appeal against the Notice.  

Grounds for judicial review

8.  The Applicant did not advance any grounds of application in his Form 86 or in his supporting affidavit.  After the legal principles applicable to judicial review was explained to him, he repeated his case and reiterated that his life would be in danger if returned to Nigeria because of his fight for self-determination.  In essence, he is challenging the finding of fact of the Board which is impermissible in an application for judicial review.  In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision, which the Court will turn to in the next section.

Overall scrutiny

9.  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 extensively researched into the COI and analysed the evidence carefully.  It tested the Applicant’s evidence against the COI, common sense and inherent probability and gave reasons for its finding.  It found the Applicant incredible and had fabricated his claim.  Applying the law applicable to non refoulement protection to its finding of fact, the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds.  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

10.  For the above reasons, on its own motion, the Court amended his Form 86, but the leave application as amended 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

Form CALL-1