ANONYE STANLEY CHINEDU v. TORTURE CLAIMS APPEAL BOARD

HCAL 243/2024

[2025] HKCFI 5026

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 243 OF 2024

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 46-year-old national of Nigeria who entered Hong Kong illegally on 21 January 2021 and was arrested by police on more than 1 year later on 22 May 2022.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to Nigeria he would be harmed or killed by the Nigerian authorities for participating in protests against the government and/or by the Muslim community for being a Christian. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised as a Christian in a village in Lagos, Nigeria where he had worked as an electrician but where the nomadic Fulani herdsmen had often driven their cattle which destroyed the crops and vegetation grown by the local villagers, but when they complained to the authorities which however failed to take any action to protect their crops, of which the Applicant suspected that it was the Nigerian government who deliberately sent the Fulani herdsmen to his home village to drive the villagers away in order to confiscate their land.

3.  In October 2020, the villagers staged a series of protests against the government in which the Applicant and his brother also participated, and on one occasion the authorities sent in soldiers to disperse the protesters, during which the soldiers fired gun shots at the crowd that injured and killed many of the villagers including the Applicant’s brother.  

4.  As a result, the Applicant became fearful for his safety, and as he also felt threatened by the majority Muslim community for being a Christian, he therefor departed Nigeria on 15 October 2020 for Benin and then China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 28 June 2022 and attended screening interview before the Immigration Department with legal representation.

5.  By a Notice of Decision dated 11 August 2022 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

6.  In his decision, the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the Nigerian authorities or the Muslim community upon his return to Nigeria as low due to the absence of or low intensity and frequency of past ill-treatment from either of them, that there is no evidence of any intention of either the authorities or the Muslim community to harm or kill him other than his own suspicion and speculation or of any incident that he had ever been specifically targeted for harm in the past prior to his departure of Nigeria, that in any event in the absence of any reliable evidence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Nigeria with a large population of 218 million people spread across a vast territory of more than 910,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities where it would be difficult if not impossible for anyone to locate him.

7.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 3 March 2023 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 13 April 2023 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision[1], the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from the Nigerian authorities or the Muslim community that caused him to leave his country to come to Hong Kong to seek protection, that his credibility was further undermined by his failure to raise his claim upon first arriving in Hong Kong until more than one year later and only after his arrest by the police, that in any event there was no reliable evidence of any adverse interest of either the Nigerian authorities or the Muslim community in him other than his own suspicion or speculation or any evidence of any threats or ill-treatment inflicted by anyone on him in the past prior to his departure of Nigeria, and that in any event in the absence of any evidence of any official involvement that state or police protection would be available to the Applicant upon his return to Nigeria as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.    

9.  On 29 January 2024 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) That the Adjudicator did not properly consider his claim at all and just dismissed it without even taking time to think about his life;

(2) That the Adjudicator unreasonably refused to allow him to submit his documents without English translation or to give him time to arrange for their translation;

(3) That the translator unreasonably refused to help him or was impatient with him during the hearing before the Board.     

10.  By then the Applicant was however out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

11.  As the last day of the three-month period for him to file his Form 86 fell on 13 July 2023, the Applicant was therefore more than 6 months late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

12.  In the Applicant’s case, a delay of more than 6 months must be considered as substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, and as the record shows that the decision was sent on the same day of 13 April 2023 to his then reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay.      

13.  As for the merits, if any, of his intended application, those grounds put forward by the Applicant are all just some bare and vague assertions without any necessary or relevant particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to give him time to translate his documents when even up to now in his present application that no such documents have been identified or produced by the Applicant, or in what way was the translator unhelpful or impatient with him during his hearing before the Board. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge or any merits in his intended application.

14.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

15.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

16.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in his claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nigeria, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.  Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

18.  Moreover, the Applicant recently on 25 August 2025 filed an affidavit requesting to withdraw his application as he has recently been granted a dependent visa to stay in Hong Kong.

19.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation to withdraw his application as no longer necessary, I accordingly dismiss his leave application.

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