EKEJI GODFREY CHIBUIKE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 259/2022

[2026] HKCFI 2232

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 259 of 2022

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/Non‑refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party.

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

Observations for the Applicant:

Introduction

1.   By Form 86 filed on 25 April 2022, the Applicant seeks leave to apply for judicial review (the “Leave Application”) of the decision of the Torture Claims Appeal Board/Non‑refoulement Claims Petition Office (the “Board”) dated 8 April 2022 (the “Board’s Decision”).  By that decision, the Board confirmed the decision of the Director of Immigration dated 8 June 2020 (the “Director’s Decision”), which had rejected his non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).

2.   The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision.  It is not necessary for me to repeat the same here.  Unless otherwise specified, the abbreviations and descriptions used in the Board’s Decision, the hyperlink[1] to which is included below, are also adopted herein.

3.  The Applicant attended the oral hearing and repeated that his life will be at stake if he were to returned to his home country because the political problem there is still not resolved.  He also confirmed that the Leave Application is directed against the Board’s Decision despite only the Director of Immigration Department is named as the proposed respondent.  

Discussion

4.  Judicial review does not operate as a further avenue of appeal.  The Leave Application operates as a “filtering” process and there is no requirement or expectation to give elaborate reasons for my decision.  The primary decision makers are the Director of Immigration (the “Director”) and the Board.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence, country of origin information (COI) materials, 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 error of laws, procedural unfairness or irrationality in the decision of the Board. [2]

5.  In seeking to challenge the Board’s Decision, the Applicant ought to have clearly and precisely identified the grounds relied upon in the Form 86 and in his supporting affirmation. [3]  The Applicant has provided a 7-page “Grounds for Judicial Review – Leave to Appeal” (the “Grounds”) which mostly repeats the background of his claim and the arguments he previously advanced before the Board.  It also contains some counter-arguments or rebuttals which are essentially challenges against the Board’s findings of fact.  Doing the best I can, the Grounds can be summarized as follows:-

(1)   There are elements of procedural unfairness.  The decision was irrational and unreasonable.

(2)   The high standard of fairness was not shown during the decision making of his case and the Board had failed to apply anxious scrutiny and examination.

(3)   The Director and the Board had erred when they failed to consider the compelling facts and evidence of the crucial factors.

(4)   The Board is biased in its assessment.

6.  I have scrutinized the Board’s Decision carefully and come to the view that none of the aforesaid Grounds can be established or considered as valid or effective public law grounds.

7.  First, most of the Grounds merely consist of generic, vague and/or unparticularized assertions without reference to any underlying facts or matters establishing why, how and where each of those complaints arise in relation to the Board’s Decision.  General assertions without particulars are not effective grounds and cannot assist the Applicant.[4]  Likewise, repeating previous arguments already advanced before the Board with a view to contending the Board’s Decision is wrong or irrational also cannot assist the Applicant.

8.  The Board was acutely aware of the Applicant’s claim is based upon his fear of being harmed or killed by the people from All People’s Congress i.e. APC, the Nigerian Police and 3 political sponsors who were not able to recover the election expenses they had invested because of PDP’s failure in the election, if he were to return to Nigeria.  The Board had duly considered the arguments and evidence referred to by the Applicant in the Grounds as well as the COI materials before coming to the view that the Applicant’s evidence was inconsistent and unbelievable.  As a matter of fact-finding exercise, the Board was entitled to reject the factual basis of the Applicant’s case i.e. that he was the Public Relation Officer of PDP and being targeted by the Police or APC members and that he was wanted by the Police, or otherwise subjected to the risk of being harmed or killed by the 3 political sponsors.  The Board had provided more than adequate reasons for rejecting the Applicant’s case in the Board’s Decision (see: Paragraphs 76 to 91 thereof).

9.  The Board was therefore entitled to find (1) there was no foreseeable real and personal risk of torture being inflicted on him if he were to return to Nigeria; (2) there was no accepted evidence that there was any pain and suffering inflicted by, or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity or that he is a target of the Nigerian government; (3) even if he had snatched the ballot box and was put on the want list as alleged, fair trial exists in Nigeria and (4) the question of internal relocation does not even arise.

10.  Second, I have also considered the Applicant’s purported attacks or rebuttals regarding the reason(s) provided by the Board in its assessment of the evidence or documents provided by the Applicant.  It is clear that the Board did not just rely on one or two such reasons in rejecting the Applicant’s evidence now pinpointed by the Applicant in the Grounds.[5]  This nit-picking approach does not begin to show the Board was biased or otherwise unfair in its assessment of evidence.

11.  Third, in all circumstances, I can discern no error of law or procedural unfairness or irrationality on the part of the Board in the assessment and rejection of the Applicant’s claim.

12.  The Board’s Decision is comprehensive with adequate reasons provided.  It was simply entitled to come to the conclusions it did and reject the Applicant’s claim.

Conclusion

13.  Accordingly, I am not satisfied that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospects of success.[6]  I dismiss the Application.

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