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HCAL 2992/2019
[2025] HKCFI 4063
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2992 of 2019
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BETWEEN
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Samuel Ebere Uzoigwe |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following;
Order by Deputy High Court Judge To:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 10 October 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 26 September 2019 dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 10 January 2019 (the “Notice”), refusing his application for non-refoulement protection.
2. The Applicant is a Nigerian national. His personal background, the factual background leading to the present application, the basis of his claim and the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. These will not be repeated here. The hyperlink to the Board’s Decision is included below [1] for reference. In gist, he claims that he fears being harmed or killed, if returned to Nigeria, by Senator Hope and/or his people from the People’s Democratic Party (the “PDP”) because he was affiliated with the rival All Progressives Grand Alliance (the “APGA”) and by his business partner because of a minor business dispute.
3. The Applicant testified before the Board. The Board had cumulative and significant concerns about the Applicant’s evidence which was not overcome by his responses or the evidence overall.
4. The Applicant had given different accounts as to his identity, nationality, how he entered Hong Kong and when he entered Hong Kong illegally. His latest account before the Board is that he is a Nigerian national and he entered Hong Kong in 2013 using a Niger passport obtained from his agent which he has now lost. The Niger passport was in an identity which was not his own. He admitted he had lied to an immigration officer by saying that he sneaked into Hong Kong from the Mainland because he was informed by other inmates that he would be released earlier if he said so. The Board found his evidence demonstrated a concerning willingness to give false information to achieve his desired outcome.
5. In relation to his claimed fear of harm from Senator Hope, the Board found the Applicant was ignorant about the merger of the APGA with other parties forming the All Progressive Congress (the “APC”) in 2013 before he left Nigeria. His explanation was that he left the APGA in 2011 and was not interested in politics anymore. The Board accepted the Applicant supported the APGA for a short time in Nigeria between 2009 and 2010, but did not accept he had any profile in connection with that party which made him an individual target for harm by political rivals, including Senator Hope and/or his people. It did not accept his father had been harmed or killed by Senator Hope or his people. On his own evidence, he was not interested in politics and had no interest or involvement with the APGA or any other Nigerian political party since around 2010 or 2011.
6. As for his claimed fear of harm or death arising from his business dispute, he said he had sold goods which were not his and which were not paid for. He had difficulties accounting for the goods to his business partner who threatened him, but never actually harmed him. He said he was able to avoid him in Niger and Nigeria. The Board found his evidence did not support his claim that he faced a real threat to his life or safety from his business partner in Niger.
7. On the evidence before it, the Board found the Applicant had and will have in the reasonably foreseeable future, no political profile giving rise to a real chance of harm of any type in Nigeria for any of the reasons he has claimed. Applying the law applicable to non-refoulement protection to the above finding, the Board found the Applicant had failed to establish his claim to non-refoulement protection under any of the grounds under the Unified Screening Mechanism (the “USM”) and dismissed.
Grounds for judicial review
8. The Applicant did not advance any grounds of application in his Form 86 or in his supporting affidavit. After the legal principles applicable to judicial review was explained to him, he confirmed he had no complaint about error of law, procedural unfairness or irrationality in the Decision. He said the event happened long time ago and he had nothing to add. He said he is happy in Hong Kong and ask for him to be allowed to continue staying in Hong Kong. These could not constitute any ground of judicial review. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision, which the Court will turn to in the next section.
Overall scrutiny
9. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board extensively researched into the COI and analysed the evidence carefully. It tested the Applicant’s evidence against the COI, common sense and inherent probability and gave reasons for its finding. It found the Applicant incredible and had fabricated his claim. Applying the law applicable to non refoulement protection to its finding of fact, the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds. These are mixed findings of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
10. For the above reasons, the Applicant’s leave application is refused.
Dated the 9th day of September 2025
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( Seline Sze)
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 09/09/2025
Samuel Ebere Uzoigwe
Applicant’s ref. no:
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 09/09/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 15392/19/1/265/NI290
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 4602/18 (Formerly RBCZ 11696/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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