RE EJEBU IFEANYI CYPRIAN

CACV 303/2023, [2025] HKCA 846

On appeal from [2023] HKCFI 2387

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 303 OF 2023

(ON APPEAL FROM HCAL 1472/2019)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 21 September 2023 refusing to grant leave for the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 26 April 2019 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 23 May 2018 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Nigeria. On 12 July 2014, he entered Hong Kong on the strength of a false passport under a false identity.  On 22 September 2014, he was arrested by the police.  On 31 October 2014, he lodged a non-refoulement claim by written representations.  

3.  The applicant’s claim was based on a fear of being harmed or killed by his paternal uncle due to a land dispute, as well as by certain terrorist groups by reason of his religion (Christianity).  The details of the applicant’s claim have been summarised by the Judge at [1] to [9] of the Judge’s decision (“the CALL-1 Form”)[1].   

4.  By a Notice of Decision dated 23 May 2018 (i.e. the Director’s Decision), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk^[2], the BOR 3 risk^[3], the persecution risk^[4] and the torture risk^[5].

5.  The applicant appealed to the Board against the Director’s Decision. After an oral hearing on 10 January 2019, the Board dismissed the appeal by the Board’s decision, which covered all applicable grounds for non-refoulement protection.  For the reasons set out in [35] to [56] of its decision, the Board found (i) the applicant was a Ugandan citizen and has residential rights in Uganda; (ii) Uganda was not a torture risk State; (iii) alternatively, the applicant failed to show he faced a real risk of Prescribed Harm under the applicable grounds or had a well-founded fear of torture in Uganda; and (iv) the applicant did not face ant prospect of refoulement to Nigeria from Uganda. The Board concluded that that the applicant was not eligible to apply for non-refoulement protection under section 37W of the Immigration Ordinance and paragraph 7 of the Petition Guide (4^th edition, 12 September 2016). The Board further considered in [57] to [59] of its decision that it was therefore unnecessary for him to assess the applicant’s claims against Nigeria as a risk State.

The Judge’s decision

6.  The applicant filed a Form 86 on 30 May 2019, seeking to judicially review the Board’s Decision, without setting out any grounds.  In the applicant’s supporting affidavit, he merely stated that he wished to apply for judicial review, as well as attaching various news articles without explaining how they were relevant to his claim.    

7.  After summarising the facts and background of the case, giving due consideration to the Decisions of the Director and the Board, the Judge refused to grant the applicant leave to apply for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [15] to [18] of the CALL-1 Form:

“15.   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.

16.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nigeria or Uganda, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.  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.

18.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly I refuse his leave application.”

Grounds for appeal

8.  In the Notice of Appeal filed on 3 October 2023, the applicant merely stated that he wanted to appeal, and repeated that he came to Hong Kong in search of “safety”.

9.  In his written submissions lodged on 17 October 2023, the applicant merely repeated the factual background to his claim and his alleged fears of returning to Nigeria.

10.  The applicant did not request an oral hearing and consented to the appeal being disposed of on paper by the court.  We will accordingly deal with the appeal on paper on the basis of the materials already filed with the court.

Discussion

11.  The applicant has in the Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening.  The applicant has wholly failed to do so.

12.  In his application in the court below, the applicant provided no particulars as to any respects in which the Board had acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

13.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  The Judge considered the decisions of both the Director and the Board and found no basis for intervening.

14.  It would appear that the Judge was not entirely correct in summarizing the Board’s reasoning in [16] of the Form CALL-1.  The Board did not find the applicant’s risk of harm claim to be a localized one or that it was not u reasonable or unsafe for him to relocate to other part of Nigeria or Uganda.  The Board’s dismissal of the applicant’s appeal was on the basis that the applicant was not entitled to apply for non-refoulement protection under section 37W of the immigration Ordinance and [7] of the Petitioner Guide, based on the applicant’s evidence that he was a Ugandan citizen with residential rights in Uganda and the Board’s analysis and finding that Uganda was not a torture risk State.

15.  The applicant has not advanced any complaint or argument against these findings and conclusions of the Board. 

16.  In our view, the Board was entitled to make the findings that the applicant was a Ugandan citizen and that in the applicant’s claim Ugandan was not a torture risk State.  On these findings, the Board was justified in concluding that the applicant may not make a non-refoulement claim as he did not satisfy the requirement of section 37W(1)(b) of the Immigration Ordinance, namely, “apart from a torture risk State, [he] does not have a right of abode or right to land in, or right to return to, any other State in which the person would be entitled to non-refoulement protection.”

17.  In his written submissions the applicant complained that he was not given a hearing in the court below. However, no hearing was requested in his Form 86, and the Judge was therefore entitled to deal with the matter on paper.  

18.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.