IKE IZUNNA JOEL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 263/2025, [2025] HKCA 993

On Appeal From [2025] HKCFI 1449

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 263 OF 2025

(ON APPEAL FROM HCAL NO 153 OF 2020)

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JUDGMENT

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Hon Chow JA (giving the Judgment of the Court):

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge Levy (“the Judge”) dated 29 April 2025 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 22 November 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 25 June 2019.

BACKGROUND

2.  The Applicant is a national of Nigeria.  He entered Hong Kong as a visitor on 22 February 2019, and had overstayed since 9 March 2019[1].  On 11 March 2019, he surrendered himself to the Immigration Department[2].  On 20 March 2019, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his creditor (Bisi Yusuf) because he was unable to repay a loan which he borrowed for his business.  He claimed that (i) his creditor was a powerful and influential senator belonging to the ruling party in Nigeria, (ii) while he was in Hong Kong, the loan money was stolen, (iii) after he informed his creditor of the loss of the money, his creditor vandalised his place of business and injured his people in March 2019, and (iv) his parents were ill-treated by and received death threat from his creditor[3].

3.  By a Notice of Decision dated 25 June 2019 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[4], BOR 2 risk[5], BOR 3 risk[6], and persecution risk[7].

4.  The Applicant appealed the Director’s Decision to the Board, but failed to attend the Board’s hearing scheduled on 31 October 2019.  The Board proceeded to consider the Applicant’s appeal in his absence.  On 22 November 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  In its decision, the Board did not find the Applicant’s claim to be plausible or truthful, and did not find him to be a credible witness (§§128-143).  The Applicant’s assertion that his creditor was a senator of the National Assembly of Nigeria conflicted with the available country of origin information (“COI”) (§§97-99 and 134).  The Board held that the Applicant had failed to establish any of the appliable grounds for non-refoulement protection (§§145-159).  In any event, the Board found that there was state protection available, and internal relocation was also a viable option open to him upon his return to Nigeria (§§162, and 166-173).

THE JUDGE’S DECISION

5.  On 15 January 2020, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground for seeking relief was given in the Form 86.  In his supporting affirmation of the same date, he merely stated that he wished to appeal the decisions of the Director and the Board.

6.  The Judge held a hearing of the leave application on 26 March 2025.  On 29 April 2025, the Judge gave her decision refusing to grant leave to apply for judicial review, for the following reasons:

“[5] …At the hearing, this court had asked him whether he had any grounds he wished to submit in support of the Leave Application. The [Applicant] initially said that he had nothing to say. After the court’s probing, the applicant then stated that the threat was still serious. If he were re-fouled, his life would be in danger. He further stated that it was not reasonable for the Board to reject his application.

[6] As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness, or irrationality. In the present case, it is plain that the [Applicant] had failed to provide any evidence or put forward any grounds to challenge the Board’s Decision. The Board’s findings of the [Applicant’s] lack of credibility on all the salient aspects of his evidence including the alleged business loan, and of the reasonable availability of state protection and internal relocation, are findings of fact, which the court in a judicial review will not interfere with subject to there being any public law errors.

[7] Bearing in mind the enhanced standard that should be adopted in scrutinizing the decision of the Board, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a very high standard of fairness.  The [Applicant] has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision, nor were such grounds identified in the Form 86.  The [Applicant’s] intended challenge to the Board’s Decision is not reasonably arguable with any realistic prospects of success such that would enable this court to grant leave.”

THIS APPEAL

7.  In his Notice of Appeal filed on 6 May 2025, the Applicant merely stated that he disagreed with the decisions of the Director and the Board, and considered there was unfairness or injustice to him in his case.

8.  In his written submissions belatedly lodged on 13 October 2025, the Applicant repeated his claimed fear of harm from his creditor in his home country.  He contended that state protection would not be available to him due to the corruption within the authorities in Nigeria, and internal relocation would not be a viable option because his creditor could locate him[8]. He complained that he was not given the opportunity to have an oral hearing before the Board.  He also complained that he was not contacted by phone, and did not receive correspondence at his address from the Board.  He asserted that the Director erred in relying on unreliable COI without travelling to his home country[9].

9.  At the hearing of the appeal, the Applicant had nothing to add to his written submissions.

DISCUSSION

10.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(6)).

11.  Further, the assessment of evidence, COI, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  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 Board: Re Kartini [2019] HKCA 1022, at §13.

12.  The matters raised in the Applicant’s Notice of Appeal and submissions are directed at the decisions of the Director and/or the Board. They do not constitute any valid grounds of appeal against the Judge’s decision.  In any event, they have no merits.  

13.  In respect of the Applicant’s complaints that he was not given the opportunity to be heard orally or was not properly notified of the date of the hearing by the Board, the Notice of Hearing dated 4 September 2019 with respect to the scheduled hearing before the Board on 31 October 2019 was sent to the Applicant’s last reported address as stated in his Notice of Appeal/Petition dated 5 July 2019 without being returned through the undelivered post (see §§11, 19 and 21 of the Board’s Decision).  The Applicant never informed the Board of his change of address despite his duty to do so under Section 37ZA(2) of the Immigration Ordinance, Cap 115 (§29).  Although the Board was not obliged to notify the Applicant of the scheduled hearing by phone, the Board called the Applicant’s reported telephone number four times on 23 October, 28 October and 30 October 2019, but none of those calls was answered (§23).  The Board was entitled to deal with the Applicant’s appeal on the available materials in circumstances where he was absent from the scheduled hearing without any proper explanation.  There was nothing amiss in the Board’s approach in disposing of his appeal. 

14.  The Applicant’s other complaints consist of general assertions, without particulars, of the Board or the Director’s assessment of risk of harm, COI, state protection and viability of internal relocation, which as earlier mentioned are primarily within the province of the Board and the Director.  

15.  We consider a high standard of fairness has been observed in the overall process of the Board’s determination of the Applicant’s appeal.  No error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.  

16.  The Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order.

17.  The Applicant’s appeal has no merit, and is dismissed.

[1] See §110 of the Board’s Decision.

[2] See §7 of the Director’s Decision.

[3] See §64 of the Board’s Decision.

[4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[5] This refers to the risk of being arbitrarily deprived of his life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[6] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[7] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.

[8] See page 3 of the Applicant’s Written Submissions.

[9] See page 6 of the Applicant’s Written Submissions.