MADUBUGWU, INNOCENT OGECHUKWU v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 535/2020

[2025] HKCFI 2791

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 535 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 be amended on the Court’s own motion, substituting “Torture Claims Appeal Board/Non-Refoulement Claims Petition Office decision of” in place of the words “Appeal Board Decision of”; and

2.      Leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.   The Applicant is a national of Nigeria. By a Form 86 dated and filed on 7 April 2020 (“Form 86”), which was accompanied by an supporting affidavit also dated and filed on 7 April 2020 (“the Affidavit”), the Applicant sought leave to commence a judicial review of the decision of the Torture Claims Appeal Board (“TCAB”) and Non-Refoulement Claims Petition Office (“NRCPO”) made on 3 March 2020 (“the TCAB Decision”)[1].

2.  I have amended the Form 86 of my own motion to reflect that the decision is one of both the TCAB and the NRCPO.

Background

3.  The Applicant’s background and case as to the incidents underlying his claim non-refoulement relief, and the immigration and procedural history leading up to the TCAB Decision, are set out in the TCAB Decision (Paragraphs 1 to 33). I will not repeat them but, in essence and for present purposes:

a.  The Applicant’s claim for non-refoulement relief on the basis of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] stems from the apparent risk of being harmed or killed by Boko Haram, a terrorist group (“Boko Haram”), because he is Christian (by whom he claim his parents were attacked and killed), and that he fears harm from Fulani Herdsmen, Niger Delta militants, persons associated with Biafran independence, and the Nigerian army; and

b.  The said non-refoulement claims under Torture Risk, BOR 2 Risk, BOR 3 Risk, Persecution Risk were rejected by a decision of the Director of Immigration (“Director”) dated 13 January 2017 (“Director’s Decision”). The Applicant then filed (with the assistance of the Duty Lawyer Service) a petition to the TCAB/NRCPO.  The TCAB/NRCPO held an oral hearing on 4 November 2019 at which the Applicant was represented by a lawyer from the Duty Lawyer Service and gave evidence.  Eventually, the TCAB/NRCPO rejected his non-refoulement claims in the TCAB Decision.

4.  No grounds for judicial review are set out in the Form 86 or the Affidavit. The latter merely exhibits the decision of the Director, the body (without attachments) of the Applicant’s Non-Refoulement Claim Form dated 10 November 2016 (“NCF Body”), and the TCAB Decision and says that the Applicant wishes to adopt them “as my fear not to return to my country”.

5.  The Applicant requested, and appeared before me, at an oral hearing of his leave application. He said he had nothing to add, and that he wanted to adopt the materials he had submitted.

Legal Principles

6.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86 (Ho Loy & Another v Director of Environmental Protection, (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142).

7.  It is trite that judicial review is not a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB/NRCPO: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886.

8.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

Discussion

9.  There is hence no allegation of any procedural unfairness in relation to, and/or of any error of law in, and/or any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

10.  Nevertheless, given the seriousness of the issues at hand, I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

11.  The TCAB Decision begins by setting out the procedural history and what was before the TCAB/NRCPO (Paragraphs 1 to 10), outlines the Applicant’s case as advanced to the Department of Immigration (Paragraphs 11 to 33), and then details the evidence adduced and submissions and conduct of the oral hearing before the TCAB/NRCPO (Paragraph 34 to 65).

12.  The TCAB Decision then sets out the relevant principles and approach that it considered and applied relating to credibility and, while accepting that the Applicant is from Nigeria and that his identity is as he is claimed, found that the Applicant was not truthful, that he had manufactured his claims for non-refoulement protection in Hong Kong, and that the TCAB/NRCPO did “not accept any of the Applicant’s claims regarding his family’s experiences at the hands of Boko Haram” and that it considered “that these claims have been manufactured in their entirety” (Paragraphs 66-70).

13.  As presaged in paragraph 70, the TCAB/NRCPO then set out its detailed assessment of the relevant evidence before it, coupled with adequate and cogent reasoning (which included references to relevant COI) for reaching its conclusions including:

a.  A finding that the Applicant had “manufactured his claims to have lived in Plateau State for a lengthy period in an attempt to establish that he and his family were victims of Boko Haram” (Paragraphs 71 to 99, see also 135);

b.  A rejection of the Applicant’s claims regarding Boko Haram and his family from 2008 to 2015 (including the claim that Ibrahim and his parents were killed in 2012 and 2015 by Boko Haram, and that his sister was missing since an alleged attack on his parents), as to why he sought non-refoulement protection including that he resided in Jos or elsewhere in Plateau state, coupled with a conclusion that such claims were manufactured in their entirety, and that he came to Hong Kong and sought protection for reasons unrelated to those advanced in his application (Paragraphs 100 to 111, see also 135); and

c.  That the TCAB/NRCPO was not satisfied that there were any substantial or strong grounds, or any real chance/risk of believing, that the Applicant would suffer from harm amounting to torture, CIDTP/torture, a risk to his life, or persecution, from Boko Haram or Fulani Herdsmen, upon his return to Nigeria. The TCAB/NRCPO was also satisfied that the Applicant would be able to reside safely if he returned to Anambra state, being where he resided before he departed from Nigeria (Paragraphs 112 to 119).

14.  It was consequent to such findings that the TCAB/NRCPO held, as it was entitled to, that the Applicant’s claims in relation to Torture Risk, BOR 3 Risk, BOR 2 Risk, and Persecution Risk were not substantiated and refused the Petition, confirming the Director’s Decision (Paragraphs 121 to 138).

15.  Despite the aforesaid examination and scrutiny, I do not see that the Applicant has any reasonably arguable case of procedural unfairness (bearing in mind the need for a high standard of fairness), error of law and/or irrationality/failure to meet the enhanced Wednesbury test in relation to the TCAB Decision. There is hence no basis to interfere with the TCAB/NRCPO’s findings of fact on matters which are primarily within its province.

16.  I am therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

17.  In the circumstances, I have ordered that 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