EZE CHIJIOKE DANIEL v. NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.   The Form 86 is amended on the Court’s own motion, naming only the Non‑Refoulement Claims Petition Office as the Putative Respondent, substituting “Non-Refoulement Claims Petition Office decision dated 30 March 2020” in place of the words “decision on 30-3-2020”, and naming only the Director of Immigration as the Putative Interested Party; and

2.   The application for 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 filed on 30 June 2020 (“Form 86”), which was accompanied by a supporting Affidavit also filed on 30 June 2020 (“the Affidavit”), the Applicant sought leave to apply for judicial review of a decision said in the Form 86 to have been made by the Torture Claims Appeal Board (“TCAB”) on 30 March 2020.  However, the decision exhibited to the Affidavit was actually one made by an adjudicator of the Non-Refoulement Claims Petition Office (“NRCPO”) on 30 March 2020 (“NRCPO Decision”)[1].

2.  The Applicant sought an oral hearing of his application.  One was scheduled on 27 August 2025.  He did not attend such, even though the Notice of Hearing sent to him by the court was not returned undelivered.  I have hence dealt with his application on the papers.

3.  I have amended the Form 86 of my own motion as above to reflect that the NRCPO Decision is the decision in respect of which leave is sought, and to reflect the identity of the proper Putative Respondent and the proper Putative Interested Party.  I will use the abbreviations and definitions from the NRCPO Decision, and from the USM 3671 Decision (defined below) unless otherwise specified herein.

Background

4.  This is set out in the USM 3671 Decision[2], the Director’s Further Decision (defined below), and the NRCPO Decision.  While I will not repeat the contents thereof, in summary and in relation to the assessment of his claim:

(1)   The Applicant originally claimed non-refoulement relief on the basis that if he were sent back to Nigeria, he would be harmed due to indiscriminate violence in Nigeria, and/or by various entities such as Boko Haram, other Nigerians who might think he belonged to Boko Haram, Biafran nationals, and his mother’s family in Lesotho;

(2)   The claim was assessed on the grounds of Torture Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected by the Director in a decision dated 25 April 2016 (“Director’s Decision”), against which the Applicant filed a Notice of Appeal/Petition;

(3)   The TCAB/NRCPO held a hearing in relation to the Applicant’s non‑refoulement claim on 3 August 2016, at which the Applicant also claimed that he would be at risk of harm from the Nigerian authorities. The decision‑maker issued decision USM 3671/16/5/89/NI84 (“USM 3671 Decision”) on 12 August 2016, in which she found that such of the Applicant’s claims for non-refoulement protection on those three grounds had failed and confirmed the Director’s Decision;

(4)   Subsequently, and in relation to the Director’s assessment of BOR 2 Risk[6], the Applicant had the benefit of further assistance from the Duty Lawyer Service (“DLS”).  He affirmed his original non-refoulement claim was true and correct and had nothing further to add to that, but claimed for the very first time that he was a practicing homosexual, and had been for a considerable period of time as a consequence of which he would be “persecuted” in Nigeria if refouled, as homosexual activity was said to be illegal, and carried both a heavy social stigma and a criminal penalty of imprisonment;

(5)   The Director, in a decision dated 8 August 2017 (“the Director’s Further Decision”) found that the Applicant had failed to establish BOR 2 Risk, inter alia as he did not find the Applicant’s supplementary information and claims to be credible and did not accept that the Applicant was a homosexual; and

(6)   On 24 August 2017 the Applicant petitioned to the NRCPO for relief against the Director’s Further Decision.  The petition was dealt with by the same adjudicator who had earlier issued the USM 3671 Decision.  She issued the NRCPO Decision on 30 March 2020, in which she found that the Applicant had not established BOR 2 Risk and confirmed the Director’s Further Decision.

Legal Principles

5.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep. HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2012, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

6.  It is trite that the role of the Court in a judicial review is not to provide 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.  (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).

7.  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 (Peter 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

8.  The Form 86 does not identify any grounds of judicial review, and does not allege any procedural unfairness in relation to, any error of law in, and/or any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

9.  However, the Affidavit does claim that the Applicant has been denied “the right to fair hearing further prejudice”. It also says that the Applicant reserves his right to submit more information “when necessary”, but none has ever been provided to the court even though he had (as mentioned above) been sent the Notice of Hearing.

10.  As the NRCPO issued the NRCPO Decision without a hearing, I am prepared to approach the leave application on the basis that the allegation in the Affidavit (despite its vague and unsatisfactory nature) amounts to a complaint that there has been procedural unfairness in processing the Applicant’s claim as to BOR 2 Risk.

11.  Given that, and also the seriousness of the issues at hand, I have considered the NRCPO Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.  I have also borne in mind the principles and approach in ST v Betty Kwan [2014] 4 HKLRD 277 at §§20-55, and the background to the NRCPO Decision which includes the procedure leading up to such, including the contents of the Director’s Further Decision and the Applicant’s petition therefrom.

12.  Having done so, I refuse to grant leave for the following reasons.

13.  Firstly, I do not see that there is any reasonable argument that the procedure adopted as a whole by the NRCPO (including the decision not to hold an oral hearing) fell short of the high standard of fairness, or (neither of which are alleged) that it was materially irrational or erroneous in law.  Rather, the NRCPO was and would have been entitled to proceed on the basis that the Applicant had nothing further to submit, and that the matter could be (as it was) disposed of without an oral hearing, since:

(1)   As a matter of context, the Applicant had introduced 2 more grounds at the oral hearing before the TCAB/NRCPO that had resulted in the TCAB Decision, and had the assistance of the DLS in advancing his further grounds, claims, and evidence to the Director in relation to BOR 2 Risk; and

(2)   Importantly, after receipt of the Director’s Further Decision the Applicant clearly and only stated in his petition that he wanted 4 weeks to submit further submissions with evidence and to seek legal advice, and asked for an oral hearing after he had submitted his evidence.  Yet the Applicant did not submit any such evidence or submissions within that timeframe, and did not at any point in the 31 or so months between his petition and the issuance of the NRCPO Decision attempt to submit, explain the failure to submit, and/or seek a further extension of time to submit, any such submissions and/or evidence. He also did not during that period seek a hearing, notwithstanding his failure to submit such evidence/submissions.

14.  Moreover, while the Applicant had claimed in the Affidavit that he reserved his “right to [submit] more information when necessary” and had received the Notice of Hearing, he has never explained what extra information, evidence, and/or submissions he allegedly wanted to produce and/or would have produced, or why and how he had not produced such, to the NRCPO.  Nor has he given any particulars as to how and why he had been prejudiced by the lack of an oral hearing or the procedure adopted by the NRCPO.  There are hence insufficient material and/or particulars to establish that any alleged procedural unfairness (including the lack of an oral hearing) occasioned any actual prejudice, or risk of prejudice, to the Applicant, and I also do not see on the evidence that he has suffered actual prejudice, or a risk of prejudice.  Relief would hence be refused in any event (Tamang Sudha v Director of Immigration [2025] HKCFI 5662; Lam Ping Cheung Andrew v Law Society of Hong Kong [2007] 1 HKC 123 at §43).

15.  Thirdly, I do not see any reasonably arguable public law grounds to vitiate the conclusions reached in the NRCPO Decision regarding the assessment of the evidence, and of the Applicant’s credibility, relating to his SOGI allegations (which are matters primarily within the province of the NRCPO) and the consequent conclusions relating to BOR 2 Risk.

16.  Finally, there was and is no challenge to the finding in the TCAB Decision that the Applicant’s other, non-SOGI, allegations did not establish BOR 3 Risk, let alone to the underlying conclusions relating to risk of harm, and the availability of state protection.  Those other, non-SOGI allegations hence could not and do not give rise to any arguable claim of BOR 2 Risk (see Kulwinder Kaur [2022] HKCA 49 at §§54-60, Sandhu Vinny [2022] HKCFI 2327 at §§24-26, [2023] HKCA 1261 at §§30, 32).  It would hence be futile to remit such for reconsideration.

Conclusion

17.  In the circumstances, I have made the orders above, including 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