RE DIKE CHIMUANYA GEORGE

CACV 79/2025, [2025] HKCA 690

On appeal from [2025] HKCFI 285

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 79 OF 2025

(ON APPEAL FROM HCAL NO. 2496 OF 2019)

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JUDGMENT

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Hon H. Au-Yeung J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”) given on 6 February 2025[1] refusing leave to the applicant to apply for judicial review against the decision dated 3 July 2019 of the Torture Claims Appeal Board (“the Board”) dismissing the applicant’s appeal against the decision dated 15 June 2018 of the Director of Immigration (“the Director”) which rejected the applicant’s non-refoulement claim.

2.  The applicant’s appeal was scheduled to be heard on 18 July 2025.  The applicant was directed to lodge his written skeleton argument not less than 28 days before the hearing and further warned that if he failed to do so, he shall be deemed to have waived the right to have an oral hearing and the hearing date would be vacated with his appeal being determined on paper.  This was communicated to the applicant by the Court’s letter dated 19 May 2025 and the Notice of Hearing dated 2 June 2025. 

3.  Despite the directions, the applicant has failed to lodge any skeleton argument by the stipulated time. The hearing date was accordingly vacated, and we have proceeded to process this appeal on paper based on the available materials.    

The applicant’s claim

4.  The applicant is a national of Nigeria, aged 47.  He last entered Hong Kong on 16 April 2011 as a visitor and had overstayed.  On 20 August 2012, he was arrested by the police and was referred to the Immigration Department on 22 August 2012.  He had previously lodged a torture claim[2] which was rejected on 2 October 2013 and his appeal was dismissed by the Board on 5 March 2014.  On 26 April 2018, he submitted the Supplemental Claim Form on all applicable grounds (apart from the torture risk ground) under the Unified Screening Mechanism.

5.  The applicant’s claim was on the basis that, if refouled, he would be harmed or killed by (1) certain members of the local police as a wanted person over a land dispute between his family and the local government; (2) two creditors, Mr. Godwill and Mr. Promise for defaulting on a loan.  The details of his claim were set out at [39] of the Board’s decision.

6.  In gist, the applicant feared repatriation from the local police as a few policemen had been killed, and some injured in a violent incident in 2010 where the Obingwa local government attempted to dispossess the applicant and his family without resettlement compensation of a plot of land owned by the families of his four uncles.  The applicant claimed that his father had also been killed and he himself was injured in the incident.  Fearing for their safety, the family and kins of the applicant fled to Togo and various places in Nigeria, with the applicant ended up in Lagos with his brother, where they had started a fashion business selling clothes and shoes and had subsequently taken out a loan from the said creditors for the purpose of sourcing materials directly from Hong Kong.  However, the applicant had lost all the money when he came to Hong Kong on 16 April 2011. A year later, the applicant’s brother was killed in a police station in Abia State and the applicant believed that it was due to the land dispute and the defaulted loan.  The applicant claimed that the police and the creditors are still looking for him, though he had lost contact with his mother since April 2018. 

The Director’s and the Board’s decision

7.  By a decision dated 15 June 2018, the Director rejected his claim based on BOR 3 risk[3], BOR 2 risk[4] and persecution risk[5] grounds. The applicant appealed to the Board.  A hearing took place on 11 April 2019 during which the applicant testified and answered questions from the Board.  By a decision given on 3 July 2019, the Board dismissed his appeal.

8.  The Board rejected the entirety of the applicant’s claim as there was no credible basis for his stated fears.  The Board did not accept that the Nigerian police were officially involved in the land dispute as the applicant’s account of the incident was based on hearsay evidence[6].  The Board did not accept, in the absence of any evidence, that there was any loan from the creditors or that the applicant had brought the money into, and subsequently lost the same in, Hong Kong[7].  The Board found that the applicant was able to travel freely within Nigeria and that he had never sought help from the authorities even after he learned of his father’s death in the incident[8].  The Board further found, on the basis of the country of origin information (COI) that there are ongoing efforts to improve various aspects of the Nigerian police force and the applicant has never availed himself to any avenues of protection[9].  The Board assessed that internal relocation to Ibadan or Abuja would be viable for the applicant based on the available COI and in the absence of any impediment in these places[10].  For these reasons, the Board concluded that the applicant had failed to establish the requirements for non-refoulement protection under any of the applicable grounds apart from the torture risk ground.

The Judge’s decision

9.  By a Form 86 dated 28 August 2019, the applicant applied for leave to judicially review the Board’s decision.  Other than stating in his supporting affirmation he would be killed in his home country, he gave no grounds to support the application.  

10.  The Judge held an oral hearing on 6 January 2025 which was attended by the applicant.  By a Judgment dated 6 February 2025, the Judge refused to give leave for judicial review.  He gave his reasons at [14] to [19] as follows:

“ 14. 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. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant complained that the Board did not believe his evidence and asked the Court to review the Board’s Decision.

16. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and 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.”

17. The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. The Board has stated its reasons for disbelieving his evidence. 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

11.  On 19 February 2025, the applicant filed a Notice of Appeal to appeal against the Judge’s decision.  His grounds of appeal, contained in a four-page document that accompanied the Notice of Appeal and exhibited in his supporting affidavit, can be summarised as follows:

(1)  The Judge’s decision was unfair, irrational and inappropriate.   The Judge has failed to address the erroneous views of the Director and the Board in their applications of the law under torture risk, BOR 2 risk and BOR 3 risk.

(2)  The Director and the Board have failed to consider that the applicant would likely be killed in Nigeria due to the incessant, brutal and deadly feud over the land and loan disputes where the authorities would rarely intervene.

(3)  Corruption in Nigeria is widespread. The State and the authorities could not protect the lives and properties of the citizens as evident in recent events of violent land disputes causing death. Internal relocation is therefore not a viable option for the applicant.

Our reasons for decision

12.  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 of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

13.  Further, it is well established that the assessment of evidence, COI, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are the primary decision makers.  The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022 at [13].

14.  In light of the established legal principles set out above, we are of the view that the grounds put forward by the applicant are not arguable.  Our reasons are as follows:

(1)  The complaint that the Judge’s decision is unfair or irrational is vague and devoid of particulars.  The applicant has not identified any palpable error in the Judge’s decision. 

(2)  The applicant has not condescended to any particulars that may support his contention that the Board’s decision is wrong in law.  He has simply repeated the factual basis of his claim which had been rejected by the Board.  His generalised statements of the recent developments in Nigeria are not relevant to his own case and has no bearing on the findings of the Board.

(3)  The applicant has not identified the facts or evidence that the Board was said to have failed to consider, and/or how that would impact on the correctness of its conclusion on each of the applicable grounds.  On the contrary, the Board gave detailed consideration as to the veracity of the incidents concerning the land disputes and the applicant’s account of the loan before reaching its conclusion that his claimed fear was not credible.

(4)  The applicant’s assertion that corruption is widespread in Nigeria and the absence of state protection cannot stand in light of the Board’s assessment of the COI on the measures to improve the performance and accountability of the police force.  More importantly, the applicant has failed on his own evidence to show that he had availed himself to state protection or other available avenues of protection.  Evaluation of risks including the assessment of the COI is a matter for the Board, who is the primary decision maker. The Court may only review the findings made by a primary decision maker if it is demonstrated that there are errors of law, irrationality or procedural irregularities or unfairness. 

15.  Having considered the materials before us, we agree with the Judge that the intended judicial review has no reasonable prospect of success, and that leave to apply for judicial review should be refused.

16.  Accordingly, this appeal is dismissed.

[1] [2025] HKCFI 285

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[4] This refers to the risk of violation of the right of life under Article 2 of the Hong Kong Bill of Rights Ordinance.

[5] This refers to the 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.

[6] [41(a)] of the Board’s Decision

[7] [41(b)] of the Board’s Decision

[8] [47] and [48] of the Board’s Decision

[9] [61] to [65] of the Board’s Decision

[10] [82] to [86] of the Board’s Decision