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CACV 521/2024, [2025] HKCA 488
On Appeal From [2024] HKCFI 3244
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 521 OF 2024
(ON APPEAL FROM HCAL 798 OF 2024)
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| RE |
Nnaji Charles Anayo |
Applicant |
________________________
| Before: |
Hon Barma JA and Lisa Wong J in Court |
| Date of Hearing: |
7 May 2025 |
| Date of Judgment: |
4 June 2025 |
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J U D G M E N T
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Hon Lisa Wong J (giving the Judgment of the Court):
The appeal
1. This is an appeal by the applicant, a national of Nigeria, against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 21 November 2024 (“Judge’s Decision”) refusing him leave to commence judicial review proceedings. The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board/Non-refoulement Petition Office (“Board”) given on 26 April 2024 (“Board’s 2nd Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“NRF Claim”) by decisions dated 8 March 2016 and 16 January 2017 (respectively “Director’s 1st Decision” and “Director’s 2nd Decision” and collectively “Director’s Decisions”).
Basis and allegations in support of NRF Claim
2. The basis of the NRF Claim is the applicant’s fear of being harmed or killed by his two business partners.
3. The circumstances giving rise to such alleged fear have been set out in detail in paragraph 6 of the Director’s 1st Decision and paragraphs 9 to 19 of the Board’s 2nd Decision and in gist in [1] to [4] of the Judge’s Decision embodied in the Form CALL-1 dated 21 November 2024, [2024] HKCFI 3244 (“Form CALL-1”).
4. Briefly:
(1) The applicant started and operated a business trading in garments and mobile phones with two friends as dormant partners.
(2) Due to a dispute concerning the operation of the business, the partners demanded the applicant to return their capital contributions. The applicant refused. This led to retribution by the partners by way of threats and assaults on the applicant’s brother who unfortunately passed away from his injuries.
(3) The applicant was therefore afraid to return home, and fled Nigeria for Hong Kong.
Overstaying in Hong Kong and lodgment of NRF Claim
5. The applicant last entered Hong Kong as a visitor on 25 March 2010 and he was permitted to remain until 15 April 2010. The applicant did not leave and had overstayed since 16 April 2010. He was arrested by the police on 15 September 2014.
6. On 18 September 2014, the applicant lodged an NRF Claim by written representations.
Director’s Decision
7. The applicant’s NRF Claim was assessed under the Unified Screening Mechanism on all applicable grounds for non-refoulement protection i.e. torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk.[4]
8. The Director assessed the applicant’s NRF Claim based on the information he had provided in his Non-refoulement Claim Form dated 3 November 2015 (“NCF”) and at the screening interview by the Director’s representative(s) on 24 February 2016. Subsequently, the Director invited the applicant to provide additional information, if any, in support of and pertaining to the NRF Claim under “BOR 2” risk. The applicant did not respond to such invitation.
9. The Director found the NRF Claim unsubstantiated under all 4 applicable grounds. The Director found, inter alia, that (1) the risk of harm against the applicant by his business partners was low should he return to Nigeria, as the past ill-treatment sustained by them had been of a low intensity and frequency; (2) there was no evidence in support of the applicant’s brother’s demise; (3) in any event, the dispute between the applicant and his business partners was private in nature without any state or official involvement; and (4) suitable options of internal relocation were available to the applicant.
Procedural history
10. The applicant had previously sought to appeal against both of the Director’s Decisions to the Board.
11. The Board, by its decision dated 20 April 2017 (“Board’s 1st Decision”), dismissed the applicant’s appeal on the papers due to the applicant’s failure to attend the hearing of the appeal. In dismissing the appeal, the Board, inter alia, found that it was unable to determine the credibility of the applicant’s allegations by reason of his absence.
12. By a Form 86 filed on 3 November 2017 in HCAL 844/2017, the applicant applied for leave to apply for judicial review against the Board’s 1st Decision. By a decision dated 3 January 2019 embodied in the Form CALL-1 of the same date [2018] HKCFI 2457, the Judge granted the applicant leave to apply for judicial review against the Board’s 1st Decision.
13. Consequently, the applicant’s NRF Claim (on all applicable grounds for non-refoulement) was remitted to the Board for re-determination. By the Board’s 2nd Decision, the applicant’s appeal against both of the Director’s Decisions was refused.
Board’s 2nd Decision
14. The Board conducted a rehearing of the NRF Claim on 4 October 2023 and 3 November 2023, at which the applicant testified before, and answered questions by, the Board. The applicant was legally represented by the Duty Lawyer Service at those hearings before the Board.
15. At the hearing before the Board, the applicant testified (for the first time) that he was a member of a separatist group namely, the Indigenous People of Biafra (“IPOB”) and that he feared he would be harmed by the Nigerian authorities for being part of what is regarded as a terrorist group.
16. The Board, by its 2nd Decision, dismissed the appeal against the Director’s Decisions on all 4 grounds for non-refoulement protection.
17. The Board found that (1) there were material inconsistencies in the applicant’s evidence pertaining to his fear of harm by his business partners, rendering such evidence incredible and the NRF Claim based thereon unsubstantiated; and (2) the new evidence raised by the applicant concerning his involvement with the IPOB was contradictory, and this, together with his lack of knowledge of the organisation’s key issues and features, rendered the NRF Claim based on the applicant’s alleged involvement with the IPOB incredible and unsubstantiated.
Application for leave for judicial review and Judge’s Decision
18. By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued in HCAL 798/2024 on 20 May 2024 and the supporting affirmation filed on the same day, the applicant sought leave to apply for judicial review of the Board’s 2nd Decision.
19. The Form 86 failed to set out any proposed grounds of review and the supporting affirmation merely exhibited a copy of the Board’s 2nd Decision. The applicant also emphasised in his affirmation that his NRF Claim “is real”, and that his life would still be in danger should he be refouled.
20. Having considered the papers lodged as well as hearing from the applicant in court, the Judge refused to grant leave to apply for judicial review of the Board’s 2nd Decision for the reasons set out at [11] – [15] of the Form CALL-1:
“11. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.
12. In the Applicant’s case, the Board rejected his claim essentially on its adverse findings on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 34 – 116 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim in not just one but two hearings, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.
13. Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm from the former business partners in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nigeria, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.
14. In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.
15. For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.”
Appeal to Court of Appeal - grounds of appeal and submission
21. By the notice of appeal filed herein on 2 December 2024, the applicant appealed against the refusal of leave for judicial review, without stating any grounds of appeal, properly so called. The applicant merely stated that he disagreed with “the decision” and that he wanted to appeal.
22. By the written submission lodged on 9 April 2025, the applicant, inter alia, repeated the factual and procedural background to his case, and stated that as he is now married in Hong Kong and the father of one child, he wished to remain in Hong Kong with his family as there is “no future in Nigeria” for his family. He attached for this court’s reference copies of his marriage certificate and the birth certificate of his daughter to his submissions.
23. The applicant appeared in person at the hearing on 7 May 2025. He reiterated that the situation in Nigeria is still unstable. He also informed the court that he has got married in Hong Kong. He appealed for a chance to stay here with his wife and their child.
Discussion
Court of First Instance’s role in judicial review in non-refoulement claim
24. 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 role of the court in judicial review is not to re-assess the non-refoulement claim. The court will scrutinise 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 at [14(1)].
Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim
25. An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance, which is considered in light of the grounds of appeal raised by the applicant. The Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst at [14(2) & (4)].
Appeal has no merit
26. The applicant has wholly failed to articulate any matters which could properly give rise to a ground based on error of law, procedural unfairness or irrationality on the part of the Board. The application for leave to apply for judicial review was bound to fail. The Judge did not err in refusing leave.
27. We could not discern from either the applicant’s notice of appeal or the written submissions any matters which could form a basis upon which the Judge’s Decision could be disturbed. The applicant has failed to articulate any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong. Nothing he has raised merits serious consideration as a potential basis to interfere with the Judge’s Decision.
28. In any event, we have anxiously scrutinised the Board’s 2nd Decision and the Judge’s Decision and are satisfied that both are in order.
Disposition
29. For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.
(Aarif Barma)
Justice of Appeal
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(Lisa Wong)
Judge of the
Court of First Instance
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The applicant appeared in person
[1] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[2] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[3] This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383) (“HKBORO”).
[4] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the HKBORO.
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