NWOKEDI JOHN MIKE IFEANYI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 641/2021

[2026] HKCFI 2478

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 641 of 2021

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 proposed respondent in the Form 86 was amended on the Court’s own motion; 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 6 May 2021 for leave to apply for judicial review (the “leave application”) of a decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 16 April 2021 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 4 June 2019 (the “Notice”), refusing his application for non‑refoulement protection.  He named the Director as the proposed respondent.  But in his supporting affirmation, he annexed a copy of the Board’s Decision as the decision in respect of which relief is sought.  On the Court’s own motion, the Form 86 was amended by naming the Board as the proposed respondent.

The Applicant’s claim

2.   The Applicant is a Nigerian national, now aged 44.  He arrived in Hong Kong on 28 January 2019 from Mainland China in a clandestine manner.  He surrendered to the police on 27 February 2019.  On 13 March 2019, he lodged a non-refoulement claim.  His claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. It was rejected by the Director’s Notice.  His appeal against the Notice was dismissed by the Board’s Decision.  He now applies for leave to apply for judicial review of that Decision.

3.  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.  The hyperlink to the Board’s Decision is included below[5] for reference.  In gist, he claims he will be killed by a client (the “client”) and a senator (the “senator”), if returned to Nigeria, because of their business dispute.

4.  The Applicant claims that he was entrusted by his client, whom he had met twice before, and the senator to travel to Guangzhou to inspect a cargo of US$500,000 worth of electronic goods before its shipment to Nigeria.  The goods were shipped without security or insurance, although the Applicant knew the roads were dangerous and there were many bandits.  The goods were lost en route from Lagos to Onitsha.  The police recovered the corpse of the driver and the lorry which was used to carry the goods.  The client demanded the Applicant to make good the loss and threatened him with death.  In an attempt on the Applicant’s life about six weeks after the loss of the shipment, the Applicant’s brother was shot dead.  The Applicant made a report to the police. As he was unable to pay a bribe, the police did not follow up with investigation.  The Applicant fled to Guangzhou where he stayed for a year. Then he came to Hong Kong.

The finding of the Board

5.  The Board considered the Applicant’s case implausible.  His case raised many questions which remained unanswered.  

6.  First, the Applicant was unable to explain why his client and the senator would entrust him with a shipment of US$500,000 based on a very slender acquaintance with him.  The Applicant surmised that his client’s associates would have vouched for his reliability.  The Board rejected that suggestion as unbelievable as it considered the Applicant’s reliability as a small business owner in Nigeria with a net monthly income of US$500 could not have impressed the client and the senator. 

7.  Second, the Board could not accept the Applicant’s case that the goods were shipped without insurance or security arrangement despite the evident risk of loss and danger of transport by road in Nigeria.  The Applicant explained that his only duty was to inspect the shipment and no more.  The Board considered that explanation raised another unanswered question why the client did not arrange insurance which is a normal precaution for transport of goods and one which a businessman like the Applicant’s client could be expected to make for a cargo of US$500,000. 

8.  Third, the Board could not accept why the Applicant made no security arrangements for the transport from Lagos to Onitsha, knowing that the route was very dangerous.

9.  Fourth, the Board could not accept the Applicant’s claim that the police refused to investigate his brother’s death because he was unable to pay a bribe, but conducted a very extensive search for the loss goods for several days and over two states without being paid a bribe.

10.  It also consider the Applicant’s failure to promptly seek protection in China where he stayed for a year damaging to his credibility.

11.  For the above reasons, the Board could not attach any credence to the Applicant’s case and found he had failed to prove the factual basis on which his claim for protection is based.  Hence, it dismissed his appeal.

The legal principles applicable to judicial review

12.  The function of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[6].

Grounds for judicial review

13.  The Applicant did not advance any grounds for judicial review in his Form 86 or supporting affirmation.  At the hearing, after the legal principles in the section was explained to him, he confirmed he had no complaints about errors of law, procedural unfairness or irrationality in the Decision.  He just repeated his fear of harm from his client and the senator. He asserted that they are waiting to harm him on his return to Nigeria.  This is a direct challenge of the Board’s finding of fact that he had failed to prove the factual basis of his claim, which is impermissible.  In the absence of any specific grounds of application, the court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in the Board’s Decision sought to be reviewed.

Overall scrutiny

14.  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.  It analyzed the evidence carefully and tested it against common sense and inherent probability.  It found there was no factual basis to support the Applicant’s claim for protection under any of the applicable grounds under the USM.  On the state of the evidence presented by the Applicant, it was open to the Board to make the finding as it did.  The Board’s finding is a mixed finding of fact and of the law, largely the former.   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

15.  For the above reasons, the Applicant’s leave application 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

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