Re Onyike Samuel Tempo

CACV 108/2025, [2025] HKCA 691

On appeal from [2025] HKCFI 530

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 108 OF 2025

(ON APPEAL FROM HCAL NO. 2508 OF 2019)

____________________

____________________

________________________

JUDGMENT

________________________

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 25 February 2025[1] refusing leave to the applicant to apply for judicial review against the decision dated 22 August 2019 of the Torture Claims Appeal Board (“the Board”) dismissing the applicant’s appeal against the decision dated 21 May 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 36. He last entered Hong Kong on 21 July 2011 as a visitor and had overstayed.  On 15 June 2012, he was arrested by the police for overstaying.  He had made previously a torture claim[2] but was rejected on 20 November 2013.  On 19 April 2018, he submitted the Supplemental Claim Form for assessment on all applicable grounds (other than the torture risk ground) under the Unified Screening Mechanism.

5.The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed by Alahji because he had an affair with his wife, Oluchi.  The details of his claim were set out at [16] of the Board’s decision.  According to the applicant, he met and dated Oluchi in 2007, not knowing that she had in fact been married to Alahji since 2009 and was pregnant with the applicant’s baby.  This affair led to the murder of Oluchi by Alahji in 2011, and subsequently the killing of the applicant’s mother by Alahji’s men after they failed to locate the applicant.  Fearing for his own safety, the applicant moved from Lagos to Imo State and subsequently left Nigeria for Hong Kong on 20 July 2011. The applicant said that he did not seek protection from the police because they were corrupt.  He did not consider internal relocation viable given Alahji’s connections and resources. He is now married to a Hong Kong resident and has a daughter with her.  He does not want to be separated from them.

The Director’s and the Board’s decision

6.By a decision dated 21 May 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 15 July 2019 where the applicant was present but did not testify[6].  By a decision given on 22 August 2019, the Board dismissed his appeal.

7.The Board found that the material aspects of the applicant’s claim such as the deaths of Oluchi and his mother were all based on hearsay evidence and that his account of being pursued by Alahji’s men was illogical and unconvincing.  His delay in lodging his claim does not reflect the genuine need for protection.  The Board assessed that state protection would be available to the applicant having regard to the country of origin information (COI) indicating that positive efforts are in place to combat corruption and to improve the efficiency of the police force. The Board also assessed that internal relocation to other cities such as Lagos, Kano, Ibadan and Port Harcourt are viable options for him.  For these reasons, the Board concluded that the applicant had not made out a case for non-refoulement protection under any of the applicable grounds.  

The Judge’s decision

8.By a Form 86 dated 29 August 2019, the applicant applied for leave to judicially review the Board’s decision.  He did not put forward any grounds for seeking relief in either of his Form 86 or supporting affirmation.

9.The Judge held an oral hearing on 15 January 2025.  By a judgment dated 25 February 2025, the Judge refused to give leave for judicial review and gave his reasons at [16] to [21] as follows:

“16. 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).

17. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he could not say that the Board was wrong. But he asked this Court to review the Board’s Decision.

18. 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.’

19. The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded because the Board did not believe his evidence, state protection will be available and internal relocation is viable. There is no valid ground from the applicant to challenge the Board’s Decision.

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

21. 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

10.On 7 March 2025, the applicant filed a Notice of Appeal to appeal the Judge’s decision.  The Notice of Appeal stated the following as grounds of appeal:

“the [appellant] will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

Discussion

11.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].

12.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].

13.In light of the established legal principles set out above, we are of the view that the grounds put forward by the applicant have no merits.  Our reasons are as follows:

(1)  The applicant fails to identify any error in the Judge’s decision or the reasons he gave for his decision. The complaints made in the Notice of Appeal are directed solely at the Board’s decision.

(2)  The complaint in the Notice of Appeal as to the Board’s use of and reliance on the COI is vague and devoid of particulars.  The applicant has not identified which piece of COI relied on by the Board was incorrect or outdated, and/or how that would impact on the correctness of the Board’s conclusion on each of the applicable grounds.

(3)  The applicant’s assertion that he will face hardship or will be in danger if he returns to his home country cannot stand in light of the Board’s rejection of the factual basis of his claim. Assessment and evaluation of risks are matters 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.  However, the applicant fails to advance arguable grounds in this appeal to challenge the factual findings made by the Board.

(4)  As to the fact that the applicant is now married to a Hong Kong resident and they have a child in Hong Kong, this does not detract from the fact that he does not have any right to enter or to remain in Hong Kong.  It is well-established that a family member (who has a right of permanent residence in Hong Kong) of a person (who has no right to remain in Hong Kong) cannot rely on the family member’s own rights under the Bill of Rights or the Basic Law to require the Director to grant a right to remain in Hong Kong to that other person: BI v Director of Immigration [2016] 2 HKLRD 520 at [92(7)] and Comilang Milagros Tecson v Director of Immigration (2019) 22 HKCFAR 59 at [57], [65] and [69]; Re Purisima Aida P [2022] HKCA 637 at [15].  Accordingly, the fact that the applicant has built a family here is not a relevant consideration in assessing his non-refoulement claim.

14.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.

Disposition

15.For the above reasons, this appeal is dismissed.

[1] [2025] HKCFI 530

[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] §18 of the Board’s Decision