AKE ROBERT v. TORTURE CLAIMS APPEAL BOARD

HCAL 1078/2021

[2026] HKCFI 1866

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1078 OF 2021

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, and “Director of Immigration” be added as the putative interested party.

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

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 29 July 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 17 June 2021 (“the Board’s Decision”).  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001078_2021_files/the_Board's_Decision.pdf

2.  The Board found that the applicant’s claims for non-refoulement protection in Hong Kong were not substantiated on any of the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board dismissed the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 29 June 2020, which rejected the applicant’s non-refoulement claim, and confirmed the same.

Amendments

3.  In Form 86, the applicant named “Torture Claims Appeal Board Non-Refoulement Claims” as the putative respondent and did not name any putative interested party.

4.  In fact, only the Board should be named as the putative respondent and the Director should be named as the putative interested party.

5.  The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all. 

6.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, and “Director of Immigration” is added as the putative interested party.

The applicant’s case

7.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

8.  In sum, the applicant claimed to be both an Ivorian national and a Nigerian national, and if refouled to Ivory Coast, he feared threat from the local Muslim community.  He also claimed that if refouled to Nigeria, he faced threats from the police/military of Nigeria due to his connection with a political/ethnic group in Nigeria called Indigenous People of Biafra (“IPOB”) and an incident that happened in 2017.

Oral hearing

9.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 5 March 2026.

10.  When this court asked the applicant for the grounds of his intended judicial review, the applicant said that he was under IPOB and some of the members including him were being pursued.  His leader was in jail after he left the country and he might meet the same fate if he was returned.  He confirmed that all these matters were presented to the Board save that his leader was not in jail then.  He asked for some more time to stay in Hong Kong, as he would return to his country when his life was no longer at risk.

Grounds for judicial review

11.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

12.  The applicant did not identify any grounds for the intended judicial review in Form 86.  In his supporting affidavit dated 29 July 2021, the applicant stated that he did not want to go back to Nigeria because the government was looking for him to kill him as he was a member of IPOB which they proscribed as terrorist organization, and he could not return to Ivory Coast either, because Muslims wanted to kill him.

13.  What the applicant said at the oral hearing before this court as mentioned above cannot amount to any valid ground for the intended judicial review too.

Discussion

14.  First of all, the applicant’s assertion at the oral hearing that his leader was put in jail and he might meet the same fate were not presented to the Board when it was dealing with the applicant’s appeal/petition.  The Court of Appeal has held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090, that the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.

15.  Further, as held in Nupur Mst v Director of Immigration [2018] HKCA 524, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition. 

16.  Thus, the applicant cannot rely on any materials not placed before the Board as a ground for his intended judicial review, and there is no reason for this court to receive new evidence and re-assess the applicant’s non-refoulement claim.

17.  His claimed fear of the Nigerian government in Nigeria and the Muslims in Ivory Coast had been duly assessed but rejected by the Board.  If the applicant intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review.

18.  Thus, none of the assertions in the applicant’s affidavit or his testimony at the oral hearing can constitute a valid ground to challenge the Board’s Decision.

19.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration, supra).

20.  Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review.

21.  In assessing the appeal/petition by the applicant, the Board arranged an oral hearing on 19 February 2021.  The applicant was represented by a duty lawyer assigned by the Duty Lawyer Service.  Thus, the applicant was given the opportunity to present his case to the Board through his legal representative.

22.  As can be seen in paragraphs 50 of the Board’s Decision, the Board had laid out in details why it was not prepared to accept that the applicant had proven to the required standard that he had Nigerian nationality.  The Board considered that it was just a bare assertion.  In gist, the Board found the copy driving licence that was produced by the applicant as the only proof of his Nigerian nationality to be unreliable and the authenticity of the same was doubtful.  Moreover, the Board found from country of origin information (“COI”) that despite Nigerian nationality was acquired by descent, the applicant failed to provide any documentary evidence that his mother was a Nigerian.

23.  Given the Board’s finding that the applicant had failed to prove the Nigerian nationality, consideration of the allegation relating to Nigeria was clearly irrelevant because the applicant was not outside Nigeria as the country of his nationality due to fear of harm.

24.  Further, the Board had given full and detailed reasoning in paragraph 55 of the Board’s Decision as to why it rejected the general credibility of the applicant in its entirety and the reliability of his claims.

25.  In relation to the applicant’s claimed threats from Muslims in Ivory Coast, the Board found that the applicant was safe while he was staying at his uncle Udoka’s place for four to five months.  There was no allegation that the police was not reactive to his father’s report to them in respect of the death of one of the applicant’s sister Eunice.  There was no evidence that the subsequent deaths of the applicant’s father and the applicant’s other sister Akuoma were reported to the Ivorian police.  There was also no allegation that the group of people who allegedly killed the applicant’s father and Akuoma were acting in an official capacity.  The applicant was not hurt at all in the alleged attack.

26.  The Board also noted from COI that the population of Christians in Ivory Coast was not that small when compared with the population of Muslims.  Further, considering the frequency of the attacks and the lapse of time since the attack by Muslims, the Board found that the future risk of the applicant being harmed if he was refouled to Ivory Coast was small.  COI materials also showed that Ivorian government did have reasonable protection available to the applicant.

27.  Moreover, there was no evidence that the perpetuators of the attack on the applicant’s home in Ivory Coast were influential in areas other than their own.  Thus, the Board found that it was not unreasonable for the applicant, being a relatively young and able man with substantial business experience, to relocate to other cities with larger Christian population and cities in the north of Ivory Coast where the applicant could continue his business.

28.  The Board concluded that the applicant’s claim non-refoulement protection in Hong Kong were not substantiated on any of the applicable grounds under the USM.

29.  The finding of facts, including the assessment of evidence, COI and risk of harm, was solely within the ambit of the Board.  The Board was entitled to make its own decision.  This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

30.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof.  The Board also correctly identified the issues and observed a very high standard of fairness.  This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. 

31.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

32.  For reasons aforesaid, the Leave Application 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