|
HCAL 1144/2020
[2025] HKCFI 3479
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1144 of 2020
| BETWEEN |
|
|
|
Okoye James Azuka |
Applicant |
|
and
|
|
|
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
|
1st Putative Respondent |
|
and
|
|
|
Director of Immigration
|
2nd Putative Respondent |
|
|
|
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
| |
consideration of documents only; or |
| |
consideration of documents and the Applicant being absent at the hearing in open court; |
Order by Deputy High Court Judge (Non-refoulement Claims) Val Chow:
1. Form 86 be amended on the court’s own motion as follows:-
a. the Torture Claims Appeal Board / Non-refoulement Claims Petition Office be named as the 1st Putative Respondent; and
b. the Director of Immigration be named as the 2nd Putative Respondent.
2. The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1.By Form 86 filed on 9 June 2020 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against: (i) the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 29 May 2020 (the “Board’s Decision”); and (ii) the earlier decision of the Director of Immigration (“Director”) dated 12 November 2018 (the “DOI Decision”) which was later affirmed by the Board’s Decision.
2.Given that the Applicant purports to challenge both the DOI Decision and the Board’s Decision, I make an order to amend the Form 86 accordingly on the court’s own motion to reflect the same.
3.An oral hearing was requested by the Applicant. It took place before me on 21 July 2025 (the “Hearing”) and the Applicant was absent.
Background
4.The Applicant’s background, the basis and history of his claim and the arguments he advanced had been set out in details in the Board’s Decision, and it is not necessary for me to repeat the same here. The hyperlink to the Board’s Decision is included below[1] for reference. In essence, the Applicant claims that he will be seriously harmed or killed by an individual known as the “Chief” (the “Chief”) who is a said to be a ringleader of drug trafficking syndicate if he were to return to Nigeria.
Discussion
5.It is trite that:-
(1) Determination of the merits of a non-refoulement claim is essentially within the remit of the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board and the Director, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see 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.
(2) An applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142.
6.In the Form 86 and the accompanying affidavit, the Applicant did not provide any specific grounds in support of theLeave Application. He merely made a general assertion that he disagreed with both the Board’s Decision and the DOI Decision.
7.The Applicant is absent at the Hearing notwithstanding his earlier request. Hence I shall deal with the Leave Application on paper.
8.At the outset, I should point out that the challenge against the DOI Decision is misconceived. The appeal to the Board is conducted by way of rehearing and the Board’s Decision would effectively supersedes the DOI Decision, see: Re Moshsin Ali [2018] HKCA 549 at §45. Hence, the focus should be on the Board’s Decision.
9.Having rigorously examined the Board’s 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 Unified Screening Mechanism; the burden of proof and standard of proof; correctly identified the issues and observed a high standard of fairness:-
(1) Having considered evidence (§§42-55), the Board was entitled to reject the Applicant’s claim that he feared for his life if he were to be refouled to Nigeria as the main concern for the Applicant was apparently discrimination that he would face in Nigeria (§47).
(2) More importantly, the Board is entitled to find that sufficient state protection was available, having regard to relevant Country of Origin information which shows that notwithstanding shortcomings in the Nigerian legal system, the Nigeria government has made efforts to institute reforms (§§62-71).
(3) The Board is also entitled to find that reasonable internal relocation alternatives are available in Nigeria, given that the Applicant is an able-bodied adult. There is also no evidence that the Chief would have the ability and motivation to pursue the Applicant given that Nigeria is a large country (§§56-61).
10.The Board’s Decision contains no error of law, procedural impropriety. I also see no basis to argue that it was irrational (even on the enhanced Wednesbury standard).
11.Hence, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success. Accordingly, I refuse to grant leave for judicial review.
Conclusion
12.In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be dismissed.
Dated the 11th day of August 2025
| |
( Edison Ho )
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
|
|
|
|
|
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted
(Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave
(Order 53, rule 6(5)).
|
|
Sent to the Applicant
on 11/8/2025
Okoye James Azuka
Applicant’s ref. no:
Nil
|
|
Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 11/8/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 14561/18/11/404/NI260
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 4145/18 (formerly RBCZ 10737/18)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
|
Form CALL-1
|