VODOUNON SETONDJI NESTOR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 437/2025, [2026] HKCA 452

On appeal from [2025] HKCFI 2458

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 437 OF 2025

(ON APPEAL FROM HCAL NO 3730 OF 2019)

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BETWEEN

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JUDGMENT

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The Court:

INTRODUCTION

1.  This is the applicant’s appeal against the order of Deputy High Court Judge (Non-refoulement Claims) Philips Wong (“the Judge”) dated 10 June 2025[1] (“the Order”) refusing to grant leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 8 November 2019 (“the Board’s Decision”) whereby the Board dismissed his appeal against the decision of the Director of Immigration (“the Director”) dated 21 November 2018 (“the Director’s Decision”).

BACKGROUND

2.  The applicant is a national of Benin. He lodged a non-refoulement claim with the Immigration Department on the basis that, if refouled, he would be harmed or killed by a woman named Maria, the first wife of his late father, because she wanted to claim all his late father’s properties and estate. The applicant’s non-refoulement claim was rejected by the Director, and the appeal against it was rejected by the Board. Details of the applicant’s claim and the Board’s reasons for rejecting the applicant’s appeal can be found in the Board’s Decision, the hyperlink to which can be found in the CALL-1 Form.

3.  The applicant’s application for leave to apply for judicial review was refused by the Judge and details of the Judge’s reasons for refusing to grant leave can be found in the CALL-1 Form.

GROUNDS OF APPEAL

4.  By a notice of appeal filed on 24 June 2025, the applicant sought to appeal the Judge’s decision to this court. For the grounds of appeal, the applicant stated that (sic) “I disagree with both decisions of Torture Claims and that of Director of Immigration on the ground that there is no fairness and there error in country of origin information.”

5.  In the applicant’s skeleton submissions lodged on 19 January 2026, he reiterated his claim and that his life would be at risk if refouled and further stated that :-

“…

Under the Unified screening mechanism (“USM”), I thought that the burden of proof was upon me to disclose. But I was doubted by both the Director of Immigration and the Board when they rejected my claim. They relied much on country of origin information but to me, both Immigration and the Board did not station any representative on ground in Benin or Nigeria to know the happenings. They even said that I would be safe with state protection. Again, the suggested to relocate to another part of the country where I could be safe. They refused to understand that an evil one could use any diabolic means like black charm or magic charm and eliminate some one. My argument is that both the Director of Immigration and the Board’s decisions are not fair and the Assessors relied much on state protection and internal relocation where as they did not study the situation of Benin and Nigeria very well. I cannot relocate to either Nigeria or Benin because Maria’s relatives will see me as they have connection with the government of Nigeria and Benin. I am submitting this submission in support of my claimed fear and to establish that my life is in danger.

Thank you for the protection that I have received so far in Hongkong and would appeal to the Honourable Judges to overturn the two decisions and grant me protection.”

6.  At the hearing on 24 February 2026, the applicant repeated his claim that his life would be in danger if he were to returned to his home country.

LEGAL PRINCIPLES

7.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(6)).

8.  The assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. 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 Board: Re Kartini [2019] HKCA 1022.

DISCUSSION & DISPOSITION

9.  In the present case, the Judge found no error of law or procedural unfairness or irrationality in the decision of the Board.

10.  It is incumbent on the applicant to point out the Judge's errors with sufficient particulars and specifics. In our view, the matters set out in the applicant’s notice of appeal and written submissions failed to identify any error on the part of the Judge. They do not constitute any viable grounds of appeal and lack substance. We see no basis to interfere with the Judge’s decision.

11.  For the above reasons, the applicant’s appeal is devoid of merits. Accordingly, we dismiss the appeal.