OROU NIKKI FOUSSENI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1038/2020

[2025] HKCFI 3441

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1038 of 2020

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.  Form 86 be amended on the court’s own motion as follows:-

a.  the name of the Putative Respondent be amended as the Torture Claims Appeal Board / Non-refoulement Claims Petition Office; and

b.  the Director of Immigration be named as the only Putative Interested Party.

2.  The time for filing the Applicant’s application for leave to apply for judicial review be extended to 29 May 2020.

3.  Leave be granted to the Applicant to apply for judicial review in respect of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 7 May 2019.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 29 May 2020 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 7 May 2019 (the “Board’s Decision”).

2.  In the Form 86, the Applicant has named both the Board and the Director of Immigration (the “Director”) as interested parties. As it is usual practice that the Board should be the proposed respondent whereas the Director should be the proposed interested party, I make an order to amend the Form 86 accordingly on the court’s own motion to ensure that the parties are correctly named.

3.  An oral hearing was requested by the Applicant. It took place before me on 21 July 2025 (the “Hearing”) and the Applicant attended in person.

Background

4.  The Applicant’s background, the basis and history of his claim and the arguments he advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference. In short, the Applicant is a dual citizen of Nigeria and Benin. He claimed that he was abducted in Benin several times between 2012 to 2013 for ransom. He also claimed that he had received threats from loan sharks since February 2013 as a result of loans being obtained on his behalf to pay the ransom to the Applicant’s kidnappers. On account of the above, he claims that he will be subject to serious harm or be killed if he returns to Benin or Nigeria.

The Leave Application is out of time

5.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the Applicant has to make the Leave Application within 3 months when the grounds for the Leave Application first arose, i.e. when the Board’s Decision was made. Hence, the deadline for making the Leave Application is 7 August 2019. The Form 86 was filed late for approximately 9 months.

6.  In AW v Director of Immigration and William Lam CACV 63/2015 (unreported, 3 November 2015), the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed in the remaining two. Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors.

7.  On any view, a delay of about 9 months is serious and inordinate.

8.  Despite the express request on the Form 86, no request for time extension was made and no explanation for the delay was provided in the Form 86 or the Applicant’s supporting affirmation for time extension to file the Form 86.

9.  At the Hearing, the Applicant orally asked for a time extension. He claimed that he was in custody at the time and did not know about the Board’s Decision which was sent to his residence. He only found out about the Board’ Decision when he was visited by his Duty Lawyer whilst he was in custody and he made the Leave Application within 2 weeks thereafter. Given the lack of supporting evidence, I do not accept that the Applicant’s explanation is credible. In any event, there is no suggestion from the Applicant that he had taken any step to inform the Board of his change of address after he was detained[2]. Hence, I do not consider his explanation (even if true) to be reasonable.

Merits

10.  Notwithstanding the above, I shall consider the merits of the Leave Application below.

11.  The applicable legal principles relating to this type of applications are well established. The judicial review is not a further avenue of appeal. Though in non-refoulement cases, the Court will adopt a high standard of fairness to review the decision of the Board with anxious scrutiny due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (“COI”) materials, 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, procedural unfairness or irrationality in the decision of the Board, see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

12.  In his supporting affirmation, the Applicant advanced the following grounds of review:-

(1)  The Board failed to consider the threat of terrorist groups such as Boko Haram and the Herdsmen and that the government of both Benin and Nigeria were unable to protect the civilian population from such threats,

(2)  The Applicant’s uncle was killed by leaders of the loan sharks after the Applicant failed to repay the loan.

(3)  There were signs of injury on his left arm which showed the injuries he sustained when he was kidnapped.

13.  At the Hearing, the Applicant only asked me to consider the application but did not add anything else.

14.  Looking at the Board’s Decision:-

(1)  In arriving at the Board’s Decision, the Board did not convene an oral hearing (§7).

(2)  Having set out the legal principles on torture risk (§§10-17), Article 3 of the Bill of Rights risk (“BOR3 Risk”) (§§18-21), persecution risk (§22) and Article 2 of the Bill of Rights risk (“BOR2 Risk”) (§§23-24) and the Applicant’s evidence (§§29-47), the Board found that the Applicant’s problem was wholly domestic and did not involve the Beninian or Nigerian authorities.

(3)  The Board accepted the Applicant’s evidence that he was kidnapped and severely ill-treated and that his uncle was killed by the loan sharks (§49) but then came to the view that this did not amount to torture or cruel, inhuman, or degrading treatment or punishment for the purposes of assessing BOR3 risk (§49).

(4)  The Board also found that, because of the lack of the evidence of the kidnappers’ connections to the state, the ground based on persecution risk must fail (§51).

(5)  The Board also found that there was not a scintilla of evidence that BOR2 Risk has been engaged (§55).

15.  With respect to the learned Adjudicator, I am of the view that it is reasonably arguable with realistic prospects of success that the Board has erred:-

(1)  Having accepted the Applicant’s evidence that he was severely ill-treated and having found that the violence to Applicant did not originate from state actors, the Board’s Decision contained no reason as to why it could therefore concluded that BOR2 Risk and BOR3 Risk were not engaged.

(2)  It is also not apparent from the Board’s Decision that the Board had conducted any analysis of the availability of state protection or whether there was any state acquiescence of the violence perpetrated with reference to relevant COI.

(3)  In similar vein, it is difficult to follow the Board’s logic as to why it found no evidence of engagement of BOR2 Risk when the Board has already accepted that the Applicant was subject to severe ill-treatment.

16.  As the Applicant has a meritorious case, I am minded to grant a time extension to the Applicant to file the Form 86 notwithstanding the undue delay because the fundamental human rights of the Applicant are at stake.

Conclusion

17.  In the premises, I make an order that the Form 86 be amended and that leave be granted on the following grounds:-

(1)  Having found that the Applicant had suffered severe ill-treatment, the Board has erred by failing to consider the issues of state acquiescence and availability of state protection.

(2)  Further or alternatively, that the Board had failed to give sufficient reasons for its findings that none of the applicable grounds for non-refoulement were established.

(3)  Further or alternatively, that the Board’s finding that none of the applicable grounds for non-refoulement were established is irrational.

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