ANI CHRISTIAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 700/2021

[2025] HKCFI 5945

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 700 of 2021

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

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

1.  Form 86 be amended, naming only the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office as the Putative Respondent.

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

Observations for the Applicant:

Introduction

1.  By a Form 86 dated 17 May 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 7 May 2021 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 20 September 2019.

2.  The Applicant requested for a hearing of this application and he attended the same. When asked if he had anything to add, he stated that according to the situation and development of his home country, his life would be in great risk as there were still prosecution of Christians. He was likely to be killed.

3.  I amend the Form 86 on my own motion to name the TCAB as the respondent.

Background

4.  The Appellant was born in Onitsha, Anambra State, Nigeria in 1983. He was a citizen of Nigeria and no other country. In gist, he fears that he will be killed by his paternal uncle because of a property dispute if he returns to his home 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

5.  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.

6.  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.

7.  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.

8.  The Applicant did not state any grounds on which the relief is sought other than stating that “I would love to be given a second consideration in my case”, and hence did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86.

9.  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 [70]. In particular, the TCAB concluded that the Appellant’s evidence concerning the key events was entirely unreliable and the TCAB was unable to give his account any credit in relation to such matters [71-73]. In any event, the TCAB was not satisfied that the Appellant would face any form of proscribed harm upon return to his home country, nor had there been a consistent pattern of gross, flagrant or mass violations of human rights in the Appellant’s home country for the purposes of section 37ZI(5) of the Ordinance or otherwise [74-76]

10.  I have also carefully considered the Applicant’s oral submissions. It is noted that the fact that the Applicant (and his family) were Christians was hitherto the purported reason why they did not report to the police, not the reason or main reason for the Appellant’s non-refoulement claim [30, 31]. In fact, his family did not leave the village even after it was under a religion-motivated attacked by Fulani herdsman in September 2018, as the Fulani herdsman were Muslims who intimated Christians [30]. His oral submissions do not affect the cogency of the TCAB Decision.

11.  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