IGWE KELVIN CHUKWUMA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1498/2020

[2025] HKCFI 6171

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1498 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 by the Applicant in open court;

1.  The Form 86 is amended on the Court’s own motion by naming the Director of Immigration as the Putative Interested Party; and

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

Observations for the Applicant:

Introduction

1.  The Applicant is a Nigerian national. By a Form 86 filed on 15 July 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 15 July 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) made on 5 June 2020 (“the TCAB Decision”)[1]. I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.

2.  At the oral hearing of his application on 27 August 2025 the Applicant confirmed to me that his application was for leave to apply for judicial review of the TCAB Decision and asked me to look into his case very well.

3.  In the circumstances, and while the Applicant has not explained why he named the Director of Immigration (“Director”) as one of the putative respondents in the Form 86, I have amended the Form 86 of my own motion to reflect the identity of the Director as the proper Putative Interested Party.

Background

4.  This is set out in the TCAB Decision. While I will not repeat the contents thereof, in summary and in relation to the assessment of the Applicant’s claim:

(1)  The Applicant claimed non-refoulement relief on the basis that if he were refouled to Nigeria he would be killed by Hausa/Fulani Herdsmen and the Nigerian Police due to his involvement in the IPOB;

(2)  The claim was assessed on the grounds of Torture Risk[2], BOR 3 Risk[3], BOR 2 Risk[4], and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 13 August 2018 (“Director’s Decision”);

(3)  The Applicant appealed/petitioned to the TCAB/NRCPO, which held a hearing in relation to the Applicant’s non-refoulement claim on 28 October 2019; and

(4)  The TCAB/NRCPO issued the TCAB Decision dated 5 June 2020, in which it dismissed the Applicant’s appeal/petition, and confirmed the Director’s Decision.

Legal Principles

5.  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).

6.  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).

7.  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

8.  The Applicant has not identified or set out any grounds of judicial review in the Form 86 or in the Affirmation. The latter merely makes some bare allegations (which I will address below) in relation to the merits of his non-refoulement claim. There is hence no allegation of any procedural unfairness in relation to, and/or of any error of law in, and/or any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision.

9.  Nevertheless, given the seriousness of the issues at hand, I have in relation to the question of merits of the substantive application 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.

10.  The TCAB/NRCPO set out the Applicant’s background, immigration and procedural history, the nature of the matter before it, and the documents that had been submitted by the Applicant (including his record of Interview) followed by a summary of the Applicant’s case as set out therein, including as to why state protection was said to be unavailable, and why internal relocation was said to be unfeasible (Paragraphs 1 to 23). The decision-maker also outlined relevant principles and considerations in relation to the four types of risk before him, including as to the nature of evidence required to show the relevant risks, and the standard of proof applied (Paragraphs 32 to 44). He then explained in detail the events that took place at the hearing, including the queries raised with and answers from the Applicant (Paragraphs 45 to 49).

11.  The TCAB/NRCPO’s discussion and findings in relation to the issues of credibility, evidence, the risk of harm, state protection, and internal relocation referred to and analysed various relevant evidence, COI, and principles. It found the Applicant’s evidence relating to the facts on which his claim was based was questionable, unreliable, based on speculation, and (on the totality of the evidence) not credible. It found that it was on the totality of the evidence unable to attach any weight to (and rejected) the Applicant’s evidence that he was a member of and youth leader of the IPOB, that the Nigerian police wanted to kill him and were helping the Hausa Fulani herdsmen to attack or harm him, and that he had been threatened with harm or ill-treatment in Nigeria. It was satisfied on all the evidence that there was no involvement at any stage of any public officials, state actors, or anyone acting in an official capacity, and that there was no evidence he was wanted by the Nigerian police or that they wanted to kill him. It was also not persuaded (even to the low standard required) that the Hausa Fulani herdsmen and the Nigerian police had wanted to harm or kill him, that he had been ill-treated in Nigeria, or that he would face any ill-treatment if he were refouled to Nigeria. It further found that reasonable state protection was available to the Applicant, and internal relocation was open to him (Paragraphs 21 to 31, 50 to 67).

12.  The decision-maker had regard to the findings above and decided that the Applicant had accordingly failed to establish Torture Risk, BOR 3 Risk, Persecution Risk, or BOR 2 Risk. The Applicant had therefore failed to demonstrate that he was entitled to non-refoulement protection on the available grounds, the appeal/petition was dismissed, and the Director’s Decision confirmed (Paragraphs 68 to 88).

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 that is sufficient to vitiate the TCAB Decision, and that justifies the grant of leave. This is especially so as to the assessment, reasoning, and findings regarding evidence, credibility, risk of harm, state protection, and internal relocation which are matters primarily within the province of the decision-making body. Nor is there any public law basis to vitiate the decision-maker’s consequent conclusions regarding Torture Risk, Persecution Risk, and BOR 3 Risk. While the TCAB/NRCPO appears to have taken too a narrow view of BOR 2 Risk, it is clear that even if had applied the correct test it would have reached the same conclusion, given the Applicant’s failure to establish BOR 3 Risk, the underlying findings (in particular those relating to the Applicant’s evidence, credibility, and risk of harm) relating to such, and the lack of any public law basis to vitiate such. I therefore do not see that such issue, taken on its own, vitiates the TCAB Decision and justifies the grant of leave (see Kulwinder Kaur [2022] HKCA 49 at §§54-60, Sandhu Vinny [2022] HKCFI 2327 at §§24-26, [2023] HKCA 1261 at §§30, 32-33).

14.  In the Affirmation the Applicant claims that the IPOB has been designated as a Terrorist group in Nigeria, and repeats his claim (as made to and rejected by the TCAB/NRCPO in the TCAB Decision) that he was a member of the IPOB and an IPOB Youth Leader. He hence also says that his life is in danger and he will be treated as a terrorist, tortured, sentenced to death and killed. I do not see how such bare allegations are in any way relevant to the leave application given the findings in and my analysis of the TCAB Decision, and the nature of judicial review as explained in Paragraph 6 above.

15.  I am therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

Conclusion

16.  In the circumstances, I have made the orders above, including 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