OGU, FRANCIS IYKE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 813/2020

[2025] HKCFI 3854

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 813 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;            or
	consideration of the documents and oral submissions from the Applicant in open court;

The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a national of Nigeria. By a Form 86 filed on 4 May 2020 (“Form 86”), and a supporting affirmation also dated and filed on 4 May 2020 (“the Affirmation”), he sought leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”)) dated 4 March 2020 (“TCAB Decision”)[1]. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

2.  The Applicant sought an oral hearing of his application and made some submissions which I will outline below.

Background

3.  The TCAB Decision sets out the Applicant’s background and case as to the incidents underlying his claim for non‑refoulement relief, as well as his immigration and procedural history leading up to the same decision. In essence:

a.  The Applicant claimed non-refoulement protection on the basis that if he were to be sent back to Nigeria, he would be harmed or killed by the Niger Delta Frontier Force (“NDFF”), and also by Muslims as he is a Christian;

b.  The claim was assessed on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 27 July 2018 (“Director’s Decision”);

c.  The Applicant then petitioned/appealed to the TCAB/NRCPO, which heard the matter on 24 December 2019;

d.  The TCAB/NRCPO then handed down the TCAB Decision which rejected the Applicant’s petition/appeal and confirmed the Director’s Decision.

Legal Principles

4.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep. HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

5.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, 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 TCAB/NRCPO. (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

6.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

Discussion

7.  The Form 86 and the Affirmation do not set out any grounds for judicial review, or relief sought, in relation to the TCAB Decision. Hence there is no allegation of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

8.  Nevertheless, given the seriousness of the issues at hand I have considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

9.  The TCAB/NRCPO began by setting out the Applicant’s nationality, date and place of birth, and immigration and procedural history (Paragraphs 1 to 5). This was followed by relevant principles relating to the four relevant grounds of risk (Paragraphs 6 to 17).

10.  The decision-maker then outlined the Applicant’s case, the conduct of the oral hearing, and its conclusions that on the facts and evidence before it the Applicant had not made out a case where he needed non-refoulement protection, having regard to what it considered were exaggerations, bare assertions, and matters that it considered implausible, untrue, or inconsistent with the conduct of someone who needed non-refoulement protection. In particular, the TCAB/NRCPO found that he would not be harmed by Muslims in Nigeria simply because he was Christian, rejected as untrue the Applicant’s hearsay evidence that NDFF members had sought him when he resided in Lagos from 2009 to 2011, and found that the murder of his parents was not directly related to the facts of his non-refoulement claim (Paragraphs 18 to 22).

11.  In any case, the TCAB/NRCPO then went on to assess and dismiss the existence of each of the four types of risk. It began by observing with reference to relevant COI that state protection was available if he were refouled (Paragraphs 23 to 27). Torture Risk was not established given the available evidence as to his past treatment, the lack of state involvement or acquiescence, the lack of any intention from the NDFF to cause serious injury to him since he left the camp (regardless of whether his claims as to 2009 to 2011 were accepted), and as state protection was available (Paragraphs 28 to 35)[6]. BOR 3 Risk was also dismissed as there was no intention to cause him serious injuries, and due to state protection, while BOR 2 Risk was also dismissed as on the facts he had failed to establish a personal and real risk that he would be arbitrarily deprived of his life upon return to Nigeria (Paragraphs 36 to 44). Persecution Risk was not established as the dispute with the NDFF was personal and did not engage a Convention reason (Paragraph 47).

12.  The decision-maker also found that internal relocation to Ekiti or Abuja was possible and was not unduly harsh, given the Applicant’s failure to establish that he would be targeted by Muslims, and the available evidence as to the geographical scope and likelihood of NDFF’s activities and the Applicant’s personal circumstances (Paragraphs 48 to 51). He then dismissed the appeal/petition (Paragraphs 52 to 53).

13.  I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test sufficient to vitiate the conclusions reached in the TCAB Decision, and that is/are sufficient to justify the grant of leave. The findings regarding and relating to the risk of harm (including as to the attendant underlying evidence and facts), state protection, Torture Risk, Persecution Risk, BOR 3 Risk, BOR 2 Risk, and internal relocation, are all matters primarily within the province of the decision-making body. Moreover, and more importantly, the conclusions reached as to the existence of each of the four relevant types of risk cannot be impeached or vitiated given the findings as to the availability of state protection and internal relocation.

14.  The Applicant said in the Affirmation that he disagreed with the decision of the TCAB. I do not see that such is relevant to the issues before me or assists his application for leave, given the findings in and my analysis of the TCAB Decision, and when judicial review is not a further avenue of appeal or for revisiting the assessment in the hope that the court may consider the matter afresh.

15.  At the oral hearing before me, the Applicant claimed that he would still face danger and risk if refouled and asked to be allowed to submit a document to give me updates on and show happenings, and as to his fear, danger, and the risk he would so face. I could not at that point see how such would be relevant, and hence gave him 14 days (which he indicated to me would be enough) to file an affirmation exhibiting that document and explaining why it was relevant to his application for the judicial review, after which I would decide on its relevance and admissibility. However, the Applicant did not file such an affirmation or document[7]. Given the findings in and my analysis of the TCAB Decision, and the nature and purpose of judicial review proceedings, I do not see that the submissions/bare allegations made to me at the hearing are relevant to or assist the application in any way.

16.  There is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

17.  In the circumstances I have ordered that the application for leave to apply for judicial review be 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