NNAMANI CHIJIOKE THEOPHILUS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1559/2022

[2026] HKCFI 3110

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1559 of 2022

Application for Leave to Apply for Judicial Review

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

Following;

1.  The Applicant’s Form 86 be amended to state the TCAB Decision as the decision in respect of which relief is sought, name the TCAB as the putative respondent and the DOI as a putative interested party; and

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 22 December 2022 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision dated 9 December 2022.  He named the Director of Immigration (the “DOI”) as the proposed respondent and named the Immigration Department as an interested party.

2.  From the case record, there was a decision by the Torture Claims Appeal Board (the “TCAB”) dated 9 December 2022 (the “TCAB Decision”) which affirmed a decision by the DOI dated 29 December 2021 in refusing the Applicant’s non-refoulement protection claim.

3.  I amended the Form 86 on my own motion to state the TCAB Decision as the decision in respect of which relief is sought, name the TCAB as the putative respondent and the DOI as a putative interested party.

4.  The Applicant requested for a hearing and he attended the same.  When asked if he had anything to add, he confirmed that he had not.

Background

5.  The Applicant is a national of Nigeria.  He seeks non-refoulement protection on the basis that if he was returned, he would be harmed or killed by people to whom he had failed to return a significant amount of money and by the government for his affiliation with a banned political party.  His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

6.  In a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement case 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.  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, [14(1)]).  There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

7.  In his affidavit filed in support of this application, the Applicant firstly reiterated the alleged risks of return. However, these had all been considered by the TCAB and the Applicant had not put forth further evidential support for the same.  These therefore do not add anything in terms of establishing or supporting any grounds for judicial review.

8.  The Applicant next pointed to specific paragraphs dealing with specific factual allegations on the part of the Applicant in an attempt to argue that :-

a.   The TCAB Decision was unreasonable/irrational in rejecting the Applicant’s alleged affiliation with the political IPOB;

b.   The TCAB Decision was, presumably also unreasonable/irrational, in rejecting his allegation that his belongs were stolen at the Star Ferry in Tsim Sha Tsui (“TST”);

c.   The TCAB erred in law in focusing on just BOR 2 risk instead of BOR 3 and persecution risks;

d.   The TCAB erred in law in holding him to the beyond reasonable doubt standard in assessing his allegations.

9.  Looking at the TCAB Decision, the TCAB took into consideration of the Applicant’s case and evidence, including all the materials before it in respect of the Applicant’s alleged involvement with the IPOB [14-32] and the alleged theft of his belongings, which included money that he was asked to return, in TST [33-43].  The TCAB pointed out that the Applicant did not report the theft to the HK authorities [44].

10.  The TCAB examined the Applicant’s previous statements made [48], the documents before it [53], the Applicant’s testimony at the hearing before it [54-83] and the Applicant’s post-hearing submission [84], as well as relevant Country of Origin Information which included information on the IPOB [86-91].

11.  What ensued was the TCAB’s thorough analysis and assessment of all of the above applying the correct principles in respect of assessment approach [Appendix A 150-158], the TCAB rejected the Applicant’s alleged risks in relation to the IPOB [92-112] and risks arising from the alleged theft [113-120].

12.  With the correct legal principles in mind, the TCAB also found and concluded that state protection was sufficiently, albeit not perfectly, available [121-124]. 

13.  Given the above, I do not see how the TCAB Decision could be said to be unreasonable/irrational in its rejection of the Applicant’s allegations, or that the TCAB had applied the wrong standard of proof.  This deals with items a, b and d above.

14.  As to item c, what is clear from the TCAB Decision is that the TCAB did not omit to consider BOR 3 or persecution risk [130-132].  To the contrary, with in mind the correct legal principles in respect of each of the four applicable grounds under the USM [Appendix A 135‑149] and on the basis of the factual findings and conclusions reached, the TCAB further concluded that these two grounds, as well as the remaining two grounds under the USM, was not made out.

15.  I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision as alleged or otherwise, despite rigorous examination and anxious scrutiny.

Conclusion

16.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review.  I therefore dismiss the 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