NNAKWE OKECHUKWU CYRIL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2456/2020

[2026] HKCFI 224

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2456 of 2020

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 the documents and the Applicant being absent in open court;

(1)  Form 86 be amended, naming the Torture Claims Appeal Board / Non-refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration be named as the Putative Interested Party.

(2)  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 17 December 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision of the Torture Claims Appeal Board (the “TCAB”) dated 24 September 2020 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (“DOI”) dated 25 July 2018.

2.  I amend the Form 86 on my own motion to name the TCAB as the putative respondent and the DOI as the putative interested party.

3.  The Applicant requested for a hearing of this application but he was absent at the hearing. I shall deal with this application on paper.

Background

4.  The Applicant is a national of Nigeria. He seeks non-refoulement protection on the basis that he would be harmed or killed by the Nigerian government or the local police due to his affiliation with and participation in 2 political parties abbreviated as MASSOB Organisation and the IPOB. In 2010 when the Applicant was participating in a meeting of around 100 active members, the police suddenly appeared and killed 10 of the participants. The Applicant was detained and assaulted by the police. After being released, the Applicant escaped to Hong Kong. His wife was warned by the Nigerian police that she should report to them if the Applicant should go back to Nigeria. The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them.

Discussion

5.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23]. It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

6.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement cases an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and this 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: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)]. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

7.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

8.  The Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86. In exhibit (5) to his affirmation in support, the Applicant set out his “grounds for leave to appeal”. This is an 8-page document which I have fully considered. Apart from setting out the background facts and stating that he remained in danger, the Applicant’s complaints are broadly that (i) the TCAB Decision was procedurally unfair and incorrect as the TCAB general accepted his credibility; (ii) the TCAB incorrectly held that state protection and internal relocation were available; and (iii) the TCAB incorrectly failed to hold that the Applicant was or would be a victim of torture particularly given the relatively low burden of proof.

9.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available [1-8, 23-35] and found that on the basis of the same, applying also the correct legal principles in respect of all four applicable grounds [9-22] and properly considering Country of Origin information [40-41], the Applicant’s allegations were insufficient to make out any of the applicable grounds [44-47]. In particular, the TCAB held that given the relatively low intensity of harm previously brought by the Nigerian police and that the Applicant’s family had been staying in Nigeria without any problem, the government or the police had no real intention to seriously harm or kill the Applicant [37], and any future risk of harm was remote and unreal [38]. These were conclusions that the TCAB was fully entitled to come to.

10.  The TCAB also concluded that state protection and internal relocation were available on the evidence [39-41, 42-43, 44, 46].

11.  I am not satisfied any of the grounds relied on by the Applicant are made out. I can detect no procedural unfairness at all. The Applicant’s other complaints are essentially challenges to the TCAB’s factual findings and conclusions but these are not sufficient grounds in a (proposed) judicial review to set aside the TCAB Decision or to show that it was incorrect in the public law sense: see the principles set out in paragraph 6 above.

12.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny. The Applicant’s intended challenge to the TCAB Decision is therefore not reasonably arguable, and accordingly the application for leave to apply for judicial review is 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