NWEKE PETER AKACHUKWU 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:

1.  Form 86 be amended, naming only the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office as the Putative Respondent and only the Director of Immigration as the Putative Interested Party

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

Observations for the Applicant:

Introduction

1.  By a Form 86 filed on 3 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 24 December 2019.

2.  I amend on my own volition the Form 86 to name only the TCAB as the putative respondent and the DOI as the only putative interested party.

3.  In the Form 86, the Applicant sought leave for judicial review against the DOI Decision.  But the DOI Decision is superseded by the TCAB Decision (Re Moshin Ali [2018] HKCA 549 at [45]).

4.  Thus, I treat the decision in respect of which relief is sought to be the TCAB Decision instead of the DOI Decision

5.  The Applicant requested for a hearing of this application.  When asked whether he had anything to add, he submitted some news clippings about the situation of his home country.

Background

6.  The Appellant is a national of Nigeria.  In gist, he fears that he will be harmed or being killed because of his sexuality if he were to return to Nigeria.  He has also claimed that he is at risk of harm from Boko Haram as well as the general security situation if returned to his 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

7.  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.

8.  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. 

9.  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.

10.  The Applicant did not state any substantive grounds on which the relief is sought, and hence did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86.  

11.  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 [124-143].  In particular, as to the homosexuality claim, the TCAB found that the Applicant was not a witness of truth [104].  The finding was inevitable, given the vagueness of his evidence and the numerous fundamental inconsistencies [92‑103].  Accordingly, the TCAB was not satisfied that he was a homosexual [106]. As to the fear of Boko Haram, the Applicant had not personally encountered them, and was thus merely relying on the general situation in Nigeria [67].  The TCAB was entitled to conclude, based on the country of origin information, that they were not satisfied that the Applicant would be at risk of harm from Boko Haram or any other armed or civil insurgencies in Nigeria [108-123], with state protection being available from where he was from [135, 141].

12.  I have also carefully considered the Applicant’s oral submissions and the documents he submitted.  His unsupported oral assertion in Court, even if true, does not assist his case.  

a.   The documents mainly concern news of recent killing of Christians in Nigeria.  They do not affect the TCAB’s conclusion.  The fact remains that the Applicant was not personally at risk of being harmed by Boko Haram;

b.   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).

13.  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