Aaron Smith Chinonso John v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1360/2020

[2025] HKCFI 3455

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1360 of 2020

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 oral submissions by the Applicant 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 Director of Immigration be added as the Putative Interested Party;

2.   The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By Form 86 filed on 30 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 5 June 2020 (the “Board’s Decision”).

2.As it is usual practice that the Director of Immigration (the “Director”) should be the proposed interested party, 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 attended in person.

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 short, the Applicant clams that he will be subject to serious harm if he were to return to Nigeria:-

(1)   He took out a loan from an individual known as Alargie Rabu (“Rabu”) to start a business. The money was lost when the Boko Haram, a group of extremist Muslim insurgents destroyed the Applicant’s shop.

(2)   As it turned out, Rabu was a financier of Boko Haram. After the Applicant told Rabu that he was not able to repay the loan. Rabu forced the Applicant to join the Boko Haram and as he refused, Rabu threatened that he would procure the insurgents to kill the Applicant.

(3)   He also claimed that he faced considerable risk for being mistaken by the Nigerian security force as a member of a group known as Mobilisation for the Actualisation of the Sovereign State of Biafra (“MASSOB”) which is said to be an active terrorist group in the eastern part of Nigeria.

(4)   He also claimed that he would be subject to double jeopardy because he was convicted and served a sentence in Hong Kong for entering Hong Kong illegally. It is said that under Nigerian law, he would be required to serve the same amount of sentence in Nigeria as he served in Hong Kong and that the Nigerian prison system would subject him to inhumane and degrading treatment as it was underfunded and insecure.

Merits

5.It is trite law 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, 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 supporting affirmation, the Applicant did not advanced any specific grounds in support of the Leave Application. 

7.At the Hearing, the Applicant orally made vague and unparticularised assertions about widespread killings and massacre in Nigeria. In the absence of credible evidence in support and elaboration on how these alleged events were relevant to the Applicant personally, I give no weight to these claims.

8.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 all applicable grounds; the burden of proof and standard of proof; correctly identified the issues and observed a high standard of fairness, having regard to all relevant matters. It was within the remit of the Board to reject the Applicant’s factual bases of his non-refoulement claim, in light of the material inconsistencies between his oral evidence and the Applicant’s case in his Non-refoulement Claim Form on key events.

9.The Board was clearly entitled to find that the Applicant was not a credible witness and that he had no genuine fear of any risk of harm (including any fear of incarceration) if he returns to Nigeria  (at §§75-118).

10.On the basis of available Country of Origin information, the Board was also not satisfied that there was any pattern of gross, flagrant or mass violation of human rights which would amount to torture or real risk of cruel, inhuman or degrading treatment or punishment (§§128, 135-146).  Hence, the Board was entitled to reject the Applicant’s complaint about him being subject to a risk of cruel, inhuman or degrading treatment or punishment in Nigerian prisons.

11.As noted above, the Applicant has not been able to point out, let alone demonstrate any reviewable errors in the Board’s Decision.

Conclusion

12.Accordingly, the Applicant’s intended challenge of the Board’s Decision is not reasonably arguable with any realistic prospects of success. In the premises, I make an order that the Form 86 be amended as described above and the Leave Application be dismissed.

Dated the 19^th 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

Form CALL-1