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HCAL 1164/2021
[2026] HKCFI 1896
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1164 OF 2021
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BETWEEN
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Onyeanisi Okechukwu Louis |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative |
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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 (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, the name of the putative interested party be amended to “Director of Immigration” and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 26 May 2021”.
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 17 August 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 22 June 2020 without identifying the decision-maker.
2. The Torture Claims Appeal Board (“the Board”) only made one decision dated 26 May 2021 (“the Board’s Decision”) regarding the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 8 June 2020 (“the Director’s Decision”). The date of decision which the applicant put in Form 86 was actually the date on which the applicant filed his Notice of Appeal to the Board. Thus, the subject matter of the Leave Application should be the Board’s Decision, which can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001164_2021_files/the_Board's_Decision.pdf
3. The Board found that the applicant had failed to establish his claim for non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s appeal/petition against the Director’s Decision, which rejected the applicant’s non-refoulement claim, and confirmed the same.
Amendments
4. In Form 86, the applicant named himself as both the putative respondent and the putative interested party, when the Board and the Director should be so named respectively.
5. As aforesaid, the decision in respect of which relief is sought should be the Board’s Decision.
6. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board”, the name of the putative interested party is amended to “Director of Immigration” and the decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 26 May 2021”.
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 for non-refoulement protection because if refouled to Nigeria, he would be harmed by the police or the soldiers in Nigeria.
Oral hearing
9. The applicant requested for an oral hearing of the Leave Application. However, the applicant was absent at the hearing on 5 March 2026.
10. As held in Re Abdus Salam [2019] HKCA 1091, an application for leave to bring judicial review should not be dismissed for want of prosecution merely because the applicant failed to attend the oral hearing of the leave application. The correct approach is to treat the applicant as having withdrawn the request for a hearing by reason of the absence at the hearing, and to proceed to determine the leave application on its merits.
11. Thus, this court will proceed to consider the merits of the Leave Application based on the written materials before this court.
Grounds for judicial review
12. 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).
13. The applicant did not identify any grounds for the intended judicial review in Form 86. In his supporting affidavit dated 17 August 2021, the applicant only stated that he disagreed with the decision of the Director of Immigration and his rejection of his claim for the following reasons: issue of credibility and state protection. He also stated that “The Director of Immigration was wrong in law and on fact in relying on the fact that the Nigeria INTERNAL RELOCATION”.
Discussion
14. The applicant’s assertions in his affidavit as mentioned above were without any particulars. The applicant was absent at the oral hearing before this court and hence the applicant did not elaborate on his grounds at all. Without the applicant’s elaboration, the assertions could only be taken as his general accusations that the Director erred in his findings on the applicant’s credibility, the availability of state protection, and the viability of internal relocation for the applicant.
15. However, those are the Director’s finding of facts and the Director’s Decision was not susceptible for judicial review anymore, as the applicant had invoked the statutory procedures of appeal from the Director to the Board and the Board’s Decision had superseded the Director’s Decision (see Re Moshsin Ali [2018] HKCA 549).
16. Thus, none of the assertions in the applicant’s affidavit can constitute a valid ground to challenge the Board’s Decision.
17. 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 [2018] HKCA 524).
18. 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.
19. In assessing the appeal/petition by the applicant, the Board arranged an oral hearing on 1 December 2020. However, the applicant was absent at the hearing. The Board sent a letter on the same day to the applicant giving him notice that he could submit to the Board a written explanation of his failure to attend the hearing. The applicant did not respond to the Board’s letter. Thus, the Board proceeded to determine the applicant’s appeal/petition based on all the available evidence.
20. As can be seen in paragraphs 35 to 69 of the Board’s Decision, the Board had examined the applicant’s claims carefully and set out in full reasons why it did not find the applicant’s account credible.
21. The Board found many aspects of the applicant’s claims implausible, his evidence regarding the alleged incidents vague and he produced no documentary evidence in support of his claims. The Board found that the applicant had failed to prove the primary facts on a balance of probabilities. Even on the lower standard in the assessment of non-refoulement claims, the Board was not prepared to give credence to any material facts in the applicant’s evidence.
22. Even if the Board were to leave aside the issue of credibility and accept the applicant’s account, it found that the applicant had not proved a real risk of serious harm. The applicant suffered only minor assaults and little injuries during the alleged two detentions and two assaults. The soldiers and the police had many chances to harm him seriously, but they did not do so. The Board considered that the past threats and assaults were of low intensity and frequency and came nowhere near attaining a “minimum level of severity”.
23. Even if it were accepted that the soldiers and the police were colluded to pursue the applicant, their objective was clearly to prevent the alleged unlawful killing of the applicant’s friend, Onyema, by the soldiers from being exposed. The mere fact that the alleged killers were soldiers did not mean that they could act with impunity. Isolated instances of abuse by a few soldiers or a few police officers did not amount to ill-treatment for which the state was responsible. The applicant was not persecuted for a Convention reason.
24. The Board also found that the applicant’s ability to leave Nigeria through proper channel using his Nigerian passport on 24 May 2019 showed that he was not wanted by the police, despite that he had failed to report to the police on 17 May 2019 as requested by the police.
25. The Board had gone through extensive, fully-referenced country of origin information (“COI”) and found that avenues of complaints were available in Nigeria and the applicant could and should have explored them. The Board found that there was systematic sufficiency of state protection in Nigeria. There was in force a comprehensive system of law and machinery for the detection, prosecution and punishment of violence and threats against people, and there was an ability and readiness to operate that machinery. The Board further found that there was nothing in particular in the applicant’s circumstances that the Nigerian government would be unable or unwilling to afford the applicant the requisite protection.
26. The Board also assessed the viability of internal relocation for the applicant, including the applicant’s assertions against it, and found that it was clearly a viable option for him. Even if the applicant’s account were accepted, he was only targeted by a few soldiers in collusion with a few police officers for personal objectives. There was no basis to assume that the soldiers and police officers involved would be able to mobilise police or military resources everywhere in the country to locate him. The Board found that it was not unduly harsh or unsafe for the applicant, being in his 40s with work experience as an electronics and jewellery apprentice, and years of experience in running his own jewellery and men underwear business, to relocate to other parts of Nigeria.
27. Thus, the Board concluded that the applicant did not face a real risk of any of the proscribed harms under the USM to entitle him to non-refoulement protection in Hong Kong.
28. 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.
29. 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.
30. 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
31. For reasons aforesaid, the Leave Application is dismissed.
Dated the 1st day of April 2026
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( Teresa NG )
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/Handed to the applicant/the applicant’s solicitors
on: 1 April 2026
Applicant’s ref. no:
Nil |
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Sent/Handed 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: 1 April 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
The putative respondent’s ref. no.:
USM 17031/20/6/64/NI323
Director of Immigration
The putative interested party’s ref. no.:
QA T/C 932/19
(formerly RBCZ 10703/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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