ADEJE ONWUNSO BRENDA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 687 /2026, [2026] HKCA 1459

On appeal from [2026] HKCFI 3100

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 687 OF 2026

(ON APPEAL FROM HCAL NO 223 OF 2023)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

Background

1.  This is an appeal against the decision of Deputy High Court Judge Martin Wong dated 11 June 2026[1] refusing to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement claim. 

2.  The applicant is a national of Nigeria.  He last arrived in Hong Kong on 1 November 2012 as visitor and subsequently overstayed. He was arrested by the police on 14 May 2021 and raised a non-refoulement claim on 18 May 2021.  His claim was made on the basis that, if refouled, he would be harmed or killed by the Nigerian authorities because of his political affiliation with the Movement for Actualization of the Sovereign State of Biafra (“MASSOB”) and the Indigenous People of Biafra (“IPOB”). 

Decisions of the Director and the Board

3.  By the Notice of Decision dated 3 January 2022, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds.  His appeal was dismissed by the Board on 2 February 2023[2].

The judge’s decision

4.  The applicant filed a Form 86 on 14 February 2023 to seek leave to apply for judicial review against the decision of the Board.  He was absent from the hearing.  His application was dismissed by the judge on 11 June 2026.

Grounds of appeal

5.  The applicant raised the following grounds of appeal in his affidavit filed on 24 June 2026:

(1)  The court failed to carefully address and consider the wrong views taken by the Director and the Board, while they failed to apply the law under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383; “BOR 2”), the risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 3”).

(2)  The IPOB members and executives are suffering persecution from the Nigerian government and their agencies.  In around November 2025, their leader was convicted and sentenced to life imprisonment.  The killing and persecution of IPOB leaders and officers is still ongoing.

(3)  The Director, the Board and the court failed to recognise the serious risk to life of the IPOB officers.  They failed to apply an enhanced standard in scrutinising the unfair, irrational and procedural decision made as required by the law.

(4)  They failed to take into account that as a member of MASSOB / IPOB, and as a public relations officer (“PRO”), the applicant will not have the benefit of state protection nor viable relocation option.  The court did not conduct a rigorous examination and anxious scrutiny. The court failed to admit that the IPOB members and officers in Nigeria are facing genuine CIDTP within BOR 3 and persecution risk within Article 33 (3) of the Refugee Convention of the United Nations.  The court is expected to intervene by way of judicial review because there are glaring errors of law or procedural unfairness or irrationality in the decision of the Board.  There are reasonably arguable grounds for realistic prospect of success for leave for judicial review to be granted.  The court endorsed the assertion or deduction by the Board that internal relocation would be available for a proscribed organization by the Nigerian government whose leader had just been sentenced to life imprisonment.  This amounted to an error of law or miscarriage of justice, or a clear procedural unfairness or irrationality in the Board’s decision.

(5)  The Director, the Board and the court failed to take the applicant’s complaints into proper account and consideration in reaching their decisions.  In assessing the evidence and COI materials, they had not thoroughly examined risk of harm, lack of state protection and internal relocation, which had resulted in errors of law and/or procedural unfairness and irrationality in their decisions.  They failed to admit that the applicant was arrested, detained and tortured by the Nigerian government and its agents in 2010.

(6)  The decision was Wednesbury unreasonable, in failing to take into account relevant matters or considering irrelevant ones. In failing to grant leave for judicial review, there are clear elements of procedural unfairness.

(7)  The applicant is an officer with the title of PRO in his zone.  His life would be in grave danger upon his return to Nigeria due to his affiliation with IPOB.  Relocation would not be a viable option and the state and authorities would not protect him.  His torture and persecution risk as an IPOB member has been underestimated, which amounted to procedural unfairness, error of law and irrationality.

6.  He enclosed a number of news reports concerning IPOB, including news report of Nigerians securing asylum in other jurisdictions.

7.  He also enclosed to his skeleton argument dated 28 July 2026 an “expert legal opinion on the well-founded fear of persecution of [the applicant] and his entitlement to international protection under applicable international refugee, human rights and humanitarian law” dated 1 July 2026 of Sir Ifeanyi Ejiofor of I.C. Ejiofor & Co, a law firm in Nigeria.  He wanted to rely on it as an expert report to set out the events and nature of persecution of IPOB members.

Legal principles

8.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14. 

Analysis

9.  The applicant has not applied for leave to adduce the legal opinion and the new evidence in this appeal.  Even if the court were to consider the legal opinion and other new evidence on a de bene esse basis, these new materials would not assist him in refuting the Board’s findings against him for the reasons set out below.

10.  In respect of the legal opinion, the author stated that his law firm serves as the principal legal representatives and counsel to IPOB in Nigeria and his knowledge of the matters covered in his report was acquired in such capacity on a professional and personal basis[3]. We have reservations if the author is truly independent and impartial to providing expert evidence.  In section 2 of the legal opinion, which contains a description of applicant’s membership and participation in IPOB, there is no supporting evidence and the author did not mention the factual basis in support of the matters that he described[4], which would appear to be assertions based on instructions given by the applicant.  The “documented history” of the applicant as a “committed supporter and active member of IPOB”[5] was not produced.  The same applies to the unsupported assertion in section 3 of the legal opinion that the applicant has been profiled and blacklisted by the Nigerian security agencies.  In particular, it is noted that the author mentioned that profiled individuals are frequently intercepted in Nigerian international airports and taken into custody[6], while the applicant was able to leave Nigeria using his passport without difficulty. 

11.  In relation to the further evidence concerning successful asylum applications in other jurisdictions, we do not think it would have much bearing on the applicant’s case.  Different jurisdictions apply different legal frameworks and evidentiary standards.  Furthermore, each application must be assessed on its own merits, based on the specific evidence and individual circumstances of the applicant.  This is also reflected in one of the news reports adduced by the applicant dated 26 April 2025, which mentioned that 1,534 Nigerian applicants failed to establish their asylum claims in the United States, notwithstanding that not less than 1,372 claims were successful.  We are not persuaded that the successful asylum applications of other Nigerians in other jurisdictions could be used to establish the risk of harm that the applicant might face upon his return to Nigeria, or to refute the findings of the Board in his case.

12.  The applicant also submitted a document dated 17 June 2025 about the successful inauguration of IPOB international headquarters in Germany.  We fail to see how this document might be relevant to the present appeal.

13.  Having considered all the applicant’s grounds, submissions and evidence, we are not able to find that the complaints he raised in this appeal could be substantiated.  We consider that the decisions of the judge and the Board are well founded.  In particular, the Board’s finding that the applicant should be safe if he returns to Lagos in Nigeria was based on the fact that he had safely relocated to and stayed in Lagos with stable employment before he left Nigeria[7]. The applicant failed to provide any or any reliable evidence to refute such finding of the Board and to support his assertion that he was appointed as the PRO of IPOB and would be specifically targeted by the Nigerian authorities because of this role.  The “Letter of Recommendation” submitted by the applicant does not mention his position as PRO.  The applicant failed to show that there are errors of law or procedural unfairness or irrationality in the decision of the Board.

14.  Therefore, the appeal is devoid of merits and is dismissed accordingly.

[1]  [2026] HKCFI 3100

[2]  The Board’s Decision can be viewed in the following hyperlink:

  https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL000223_2023_files/the_Board's_Decision.pdf

[3]  Incidents affecting the author personally were described in paragraphs 10.5 to 10.6 of the legal opinion.

[4]  The legal opinion misstates the applicant as public relations officer of the IPOB “Kam Tin Yuen Unit”, while it is called “Kam Tin / Yuen Long Zone” according to the applicant’s own evidence, see the document entitled “Letter of Recommendation” attached to the notice of appeal submitted to the Board, a copy of which is also found in the appeal bundle before this court.

[5]  Referred to in §8.3 of the legal opinion

[6]  §7.3 of the legal opinion

[7]  Board’s Decision, §§31(x), 46 and 63