IZUANAGBARA CHINEDU VITALIS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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:

Introduction

1.  By a Form 86 filed on 21 June 2021 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 5 May 2021 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 11 September 2019.

2.  The Applicant requested for a hearing of this application.  When asked whether he had anything to add, he submitted, to the best of my understanding, that the critical part of the case was the debt and the possibility that he would be killed if he returned. As a result, he lost his child 11 months ago.  His wife said the child was killed as he was indebted to the creditor.  When asked whether there were any proof of the same, he said that there was no proof of this, as the Nigerian police was corrupt and he had no money to pursue a proper investigation.

Background

3.  The Applicant is a national of Nigeria.  The centrepiece of the Applicant’s case is his claim that his personal safety in his home country is at risk due to the outstanding debt owed to Ifeanyi.  He also claimed that being a Christian is dangerous in his home country because the president of the country wants to Islamise the entire country.  The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them.  Unless otherwise specified, TCAB’s abbreviations and descriptions are adopted herein.

Discussion

4.  The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

5.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal. While I also remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinizing the decision of the TCAB given the seriousness of the issue at hand, this court would not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  A finding of fact is exclusively within the realm of the TCAB, and 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 at [14(1)].  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

7.  The Applicant did not state any substantive grounds on which the relief is sought, other than stating, “I disagree with TCAB’s decision that my claim lacks credibility. I wish to adopt my claim as my life is in danger.  I don’t want to return because Mr Ifeanyi is after my life”, and hence did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86.  

8.  While the Applicant “disagree with TCAB’s ruling of his lack of credibility”, he did not explain the reasons for disagreement.

9.  As can be seen from the TCAB Decision, the TCAB took into account all the evidence available and found that on the basis of the same, applying the correct legal principles in respect of all the applicable grounds under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds [27-42].  The TCAB reached the conclusion of lack of credibility having conducted a detailed analysis of the evidence [27-39].  The conclusion was wholly unsurprising given the inconsistencies and vagueness of the Applicant’s evidence.  The Applicant’s case concerning his religion was brief and without elaboration, and was also rightly rejected [41].  Mr Ifeanyi’s ability to track the Applicant was also highly questionable [42].

10.  I have also carefully considered the Applicant’s oral submissions.  They do not assist his case.  

a.  His submissions were not supported by any evidence and were highly suspect, particularly when the proof of such serious matter should be readily available.

b.  His submissions do not affect TCAB’s conclusion that Mr Ifeanyi did not appear to have the ability to track the Applicant in any event;

c.  If and insofar as the Applicant seeks to claim that there has in fact been a significant change of circumstances or new information relevant to his non‑refoulement claim, that may be relevant to the potential procedure in ss. 37ZO and 37ZP Immigration Ordinance (Cap 115), but it is not relevant to the present application (Amandeep Kumar v Torture Claims Appeal Board [2019] HKCA 1369 at §13; Poinem v Torture Claims Appeal Board [2020] HKCA 911 at §15).

11.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.  The Applicant’s intended challenge to the TCAB Decision is not reasonably arguable, and accordingly the application for leave to apply for judicial review is dismissed. 

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