Nnajiofor Ogechi v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 1383/2020 on BabelCite. This High Court CFI judgment was delivered on 6 February 2025.
1. This is the Applicant’s application by Form 86 filed on 3 July 2020 for 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 17 June 2020 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 21 October 2019 (the “Notice”), refusing his application for non-refoulement protection.
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HCAL 1383/2020 [2025] HKCFI 563 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1383 of 2020
Application for Leave to Apply for Judicial Review Following;
Order by Deputy High Court Judge To:
Observations for the Applicant: Introduction 1.This is the Applicant’s application by Form 86 filed on 3 July 2020 for 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 17 June 2020 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 21 October 2019 (the “Notice”), refusing his application for non-refoulement protection. 2.The Applicant had requested an oral hearing. Then, on 12 December 2024, he applied to withdraw his leave application (the “withdrawal application”) because he wanted to return to his home country to arrange for his father’s burial. The Court could not find any evidence to suggest that his withdrawal application was made voluntarily nor that he understood the consequence of his withdrawal application, particularly as he claims he is at risk of harm and death by the government of his home country where he is returning to. Hence, this Court refused his withdrawal application and continued to process his leave application. However, while his leave application was being set down for hearing, this Court was informed that he had left Hong Kong. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered his application may be justly determined on paper without an oral hearing. Background 3.The Applicant was a Nigerian national. He last entered Hong Kong on 11 November 2018, and was permitted to stay until 25 November 2018. He overstayed since 26 November 2018. He surrendered to the Immigration Department on 26 March 2019 and made a non-refoulement claim on 3 April 2019. In due course, his claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His application was rejected by the Director’s Notice. His appeal was dismissed by the Board’s Decision. He now seeks leave to apply for judicial review of that Decision. The Applicant’s case 4.The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claims he is in fear of reprisal by the Nigerian government for his association with the Indigenous People of Biafra (“IPOB”) if returned to his home country. 5.The Applicant, now aged 44, was born in Unubi, Nigeria. He received formal education for 12 years, and had 11 years’ experience running a fashion business. He is a widower. His parents and three siblings are living in Nigeria. 6.He claimed that he joined IPOB, a secessionist group, as a member in around April 2015. In October 2015, he participated in a protest to press the Nigerian government to release the IPOB leader. He was assaulted by the government security forces. He was sent to hospital for treatment and hospitalised for six weeks. He was not arrested. 7.In January 2017, he was elected as the IPOB youth coordinator for his zone in Anambra. About two months later, he had a meeting with around 100 IPOB members in a hall. In the middle of the meeting, the Nigerian security forces arrived, and fired tear gas and live ammunition. In the incident, 20 members were killed, 30 members were injured, and 30 members including him were arrested. Whilst detained in the police station, he was assaulted with boots and batons. His uncle, who was a retired senior officer of the Anambra state government, bribed the police for his release without charge. Before being discharged, he signed a paper acknowledging that he would be re-arrested or killed if he participated in any protests again. After that, he went to hospital where he stayed for a month for medical treatment. 8.In September 2017, the IPOB leader hosted a meeting at his home where about 1,000 members including the Applicant attended. During the meeting, the Nigerian security forces invaded the leader’s home, killing about 100 members and injuring about 50 members. The Applicant managed to escape. There was an occasion in May 2018 that he saw the police looking for him while he was hiding in his friend’s place in Obosi. He applied and obtained a passport and then fled to Hong Kong. He departed Nigeria through proper immigration channel without problem. 9.Whilst in Hong Kong, he learnt from an IPOB member and his parents that his deputy was arrested and the Nigerian government was looking for him. He continued to participate in IPOB affairs, as there was an IPOB group in Hong Kong. 10.He does not believe the Nigerian authorities and police would help him because IPOB is proscribed as a terrorist organisation by the Nigerian government. He does not believe internal relocation would be viable because the Nigerian government could locate him throughout the country. The finding of the Board 11.The Applicant testified before the Board. Seemingly, the Board assessed his claim on the basis of the case as he asserted. It found that in the 2015 incident, he was not arrested. He had no qualms about returning home from hospital, which suggests he was not a specific target of the Nigerian security forces. Though he was arrested in the March 2017 incident, his uncle was able to arrange for his release, albeit with a bribe, without charge after his undertaking not to take part in further protests. During the raid of the IPOB leader’s home in September 2017, the Applicant escaped without harm. He then applied for and obtained his passport, which he used to leave Nigeria through proper immigration channel without problems. As such, the Board found that he was not on any watch or stop list, and was not a person of interest to the authorities. 12.The Applicant confirmed at the hearing that he had no fear that his absolute and non-derogable right to life under BOR 2 would be at risk on his return to Nigeria. His fear was only on account of his association with IPOB. 13.The Board found the Applicant is not entitled to protection under Torture Risk ground primarily because it was not satisfied that the injuries the Applicant suffered attained the minimum level of severity and that the injuries were inflicted with involvement of a public official or state acquiescence. 14.For the same reasons, the Board was also not satisfied that there is a genuine and substantial risk of his being subjected to such ill-treatment should he be returned to Nigeria. Hence, the Board found he is not entitled to protection under BOR 3 Risk ground. 15.While accepting the Applicant’s fear was based on possible reprisal for his association with the IPOB, the Board found it was not on account of his race, religion, nationality, membership of a particular social group or political opinion. Hence, he is not entitled to protection under Persecution Risk ground 16.On the basis of authoritative and credible country of origin information (“COI”), the Board accepted that there are police failures and corruption in Nigeria. However, the COI also suggest that there are efforts made to deal with concerns about the treatment of the IPOB such as actions taken against security forces acting in excess of power. An independent non-judicial body, the National Human Rights Commission, was established by law to promote and protect human rights. It is mandated to investigate allegations of human rights abuses and it publishes periodic reports detailing its findings. 17.According to Country Information Report – Nigeria published by the Department of Foreign Affairs and Trade (“DFAT”) of Australia, “individuals associated with IPOB do not face official violence on a day to day basis” and that “people who return to Nigeria are unlikely to face adverse attention on their return. Thousands of Nigerians enter and leave the country every day. In 2016 and 2017, thousands of involuntary returnees or failed asylum seekers were returned from the United Kingdom and Europe. DFAT is not aware of any adverse attention or arrests relating to these returns. The Nigerian Immigration Service is unlikely to be aware of the return of failed asylum seekers.” 18.The COI reported that courts in Nigeria had been exercising their functions judiciously. There are reports that the IPOB leader and high level IPOB members were granted bail and IPOB members were released from prison. Avenues for justice and redress of grievance are open to the people. The government is not turning a blind eye to the conditions in the country. It is taking steps to improve the situation. The Board is satisfied that adequate state protection is available. It also found internal relocation feasible and open to the Applicant. 19.Applying the law applicable to the non-refoulement protection under the USM to the above finding of facts, the Board found that the Applicant had failed to establish the factual basis to support his claims for protection under any of the four applicable grounds. Hence, it dismissed his appeal against the decision in the Notice. Legal principles applicable to judicial review 20.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. 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 court will scrutinize 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[5]. Grounds for judicial review 21.In his supporting affirmation, the Applicant stated that he disagreed with both the Director’s Notice and the Board’s Decision. The essence of the Applicant’s complaint is that he disagreed with the finding of the Board that it is safe for him to return to his home country. In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to Nigeria. That is not permissible. In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. Conclusion 22.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board assessed the Applicant’s claim on the basis of his case as he asserted. It was on that basis that the Board found there could not possibly be any substantial grounds for finding that he will face any real risk of ill-treatment if refouled to Nigeria. The Applicant’s feared ill-treatment is not well-founded. Then, applying the law to the above finding of fact, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the four applicable grounds under the USM. These are finding of facts which are exclusively within the province of the Board, which the Court in a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could detect no error of law in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. 23.For the above reasons, the Applicant’s withdrawal application and leave application are refused. 24.The Court does not have the Applicant’s contact address in his home country. The Order and Form CALL-1 are therefore sent to the Director of Immigration with a request that the Department will use its best endeavor to forward them to the Applicant. Dated the 6th day of February 2025
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 [1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”) [3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol [4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 [5] [2018] HKCA 524 at [14(1)] | |||||||||||||||||||||||||||||||||||||
Cases cited in this judgment