Nsubuga Evans Alias Okerafor Evans Onyii v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 1131/2020 [2025] HKCFI 3447 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1131 of 2020
Application for Leave to Apply for Judicial Review Following;
Order by Deputy High Court Judge (Non-refoulement Claims) Val Chow:
Observations for the Applicant: Introduction 1.By Form 86 filed on 8 June 2020 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 15 May 2020 (the “Board’s Decision”). 2.To ensure that the putative respondent is properly named, I make an order to amend the Form 86 accordingly on the court’s own motion. 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 detail 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 gist, the Applicant claimed that he would be facing threats of serious harm and death from his paternal uncle (the “Uncle”) if he were to return to his home country of Nigeria or to Uganda (where the Applicant also holds citizenship). Discussion 5.Leave application of this sort is intended to be a filtering process and elaborate reasons are not necessary, see Re Zunariyah [2018] HKCA 14, at §23. Hence, I shall set out the brief reasons of my decision below. 6.The applicable legal principles relating to this type of applications are well established. The judicial review is not a further avenue of appeal. Though in non-refoulement cases, the Court will adopt a high standard of fairness to review the decision of the Board with anxious scrutiny due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (“COI”) materials, 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, procedural unfairness or irrationality in the decision of the Board, see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14). 7.It is trite law that, 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. Yet, in the Form 86, the Applicant did not provide any grounds in support of the Leave Application. In his supporting affirmation, the Applicant merely claimed that he disagreed with the Board’s Decision. 8.The Applicant has also failed to attend the Hearing. 9.Notwithstanding the above, I have considered the Board’s Decision in detail. I do not find any error of law, procedural unfairness or irrationality. There is nothing to indicate that the Board had failed to take into account any relevant matters or that it had taken into account any irrelevant matters. Having considered the evidence before it, the Board was entitled to find that there was no real risk of harm should the Applicant be returned to either Nigeria or Uganda (§§83-124) in light of the circumstances, in particular that the Applicant’s claim that his parents were killed by the Uncle using “black magic” (which I presume to mean poison) lacks any evidential basis. There is also no evidence to show how or why his other uncle (known as uncle Edmund) died so as to give rise to a well-founded fear of serious harm or ill-treatment on the part of the Applicant. 10.Without disrespect to the Applicant’s religious belief, I cannot see any basis to challenge to Board’s Decision. The Board’s Decision satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. 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 15th day of August 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
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Cases cited in this judgment