COLLINS OBI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 103/2025, [2025] HKCA 695

On Appeal From [2025] HKCFI 693

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 103 OF 2025

(ON APPEAL FROM HCAL NO 2909 OF 2019)

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J U D G M E N T

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

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 4 March 2025 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 6 September 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 31 October 2018.

BACKGROUND

2.  The Applicant is a national of Lesotho born in Nigeria[1]. He entered Hong Kong as a visitor on 10 November 2015, and had overstayed since 25 November 2015.  On 10 December 2015, he surrendered himself to the Immigration Department.  On 12 February 2016[2], he lodged a non-refoulement claim on the basis that, if refouled to Lesotho or Nigeria, he would be harmed or killed by his paternal uncle (Patrick Obi) (“Uncle Patrick”) over a land dispute, apparently because his father had, in around August 2015, regained a piece of land in Nigeria which had previously been occupied by Uncle Patrick for over 20 years[3]. Details of the Applicant’s claim have been summarised by the Judge at §§4 and 5 of his judgment dated 4 March 2025 (“the Judgment”).   

3.  By a Notice of Decision dated 31 October 2018 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[4], BOR 2 risk[5], BOR 3 risk[6], and persecution risk[7].

4.  The Applicant appealed the Director’s Decision to the Board.  On 6 September 2019, the Board dismissed the Applicant’s appeal, and affirmed the Director’s Decision (“the Board’s Decision”).  The Board’s reasons for its decision were summarised by the Judge at §10 of the Judgment, as follows:

“[10] Having considered the evidence, the Board had made the following findings.

(1) The [Applicant] has made bare assertions and provided no objective proof of those assertions. [45]

(2) Based on the evidence before it, the Board found that the [Applicant] does not face a real risk of proscribed harm if he is removed to Lesotho and that Lesotho is not a Risk State. [67]

(3) It is incredible that Uncle Patrick was able to kill three people openly and the police did not carry out any investigation of the murders of his parents and his brothers.  [76]

(4) The Board’s overall conclusion is that the [Applicant’s] case lacks any credibility and that he can return safely to Nigeria.  [77]”

THE JUDGMENT

5.  On 3 October 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground for seeking relief was given in the Form 86.  In his supporting affidavit of the same date, the Applicant repeated his claimed fear upon return to his home country and asked to be allowed to stay in Hong Kong because his problem had not yet been resolved.

6.  On 4 March 2025, the Judge refused to grant leave to the Applicant to apply for judicial review, for the following reasons:

“[13] The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board…

[14] The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

…

[16] The Board, for the reasons given above, found that the [Applicant’s] evidence is incredible and he does not have any risk of harm if he returns to his Lesotho or Nigeria.

[17] There is no valid ground from the [Applicant] to challenge the Board’s Decision.

[18] There is no reason that the Court should interfere with the Board’s finding of the facts.

[19]      The [Applicant] fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.”

THIS APPEAL

7.  In his Notice of Appeal filed on 5 March 2025, the Applicant stated that he wanted to appeal and he did not agree with the Judgment which he said was unreasonable.  He asserted that all the information he had given about his case was true.

8.  In his written submissions lodged on 4 July 2025, the Applicant repeated the factual basis of his non-refoulement claim, and his fear of being killed by Uncle Patrick upon refoulement. 

9.  At the hearing of the appeal, the Applicant had nothing to add.

DISCUSSION

10.  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’s role is not to examine the Board or Director’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)).

11.  Further, 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.  No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

12.  The Applicant has failed to identify or show any error in the Judgment refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order. 

13.  The Applicant’s appeal has no merit, and is dismissed.