Anosike Nnamdi Anthony v. Torture Claims Appeal Board

HCAL 1212/2025

[2025] HKCFI 3499

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1212 OF 2025

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1.Leave to apply for Judicial Review be granted;

2.   The Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule of the RHC (Cap 4A); and

3.   The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party.

Observations for the Applicant:

1.The Applicant is a 37-year-old national of Nigeria who entered Hong Kong illegally on 17 November 2024 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to Nigeria he would be harmed or killed by the Nigerian authorities including the Nigerian Army and the security forces for being a member of the separatist group Indigenous People of Biafra (“IPOB”) declared by the Nigerian government as a terrorist organization.  

2.The Applicant was born ethnically an Igbo and was raised in Nnewi, Nigeria. After leaving school he made his living by making and fitting tyres in his home district, and in 2021 became a member of IPOB, the separatist group aiming for the restoration of the defunct Republic of Biafra for the Igbo people, and which has been declared by the Nigerian government as a terrorist organization.

3.In 2023 the Applicant was promoted to be a Zone Director of IPOB in Ekwulumili, responsible for managing and organizing meetings and activities for the local members.

4.One day in February 2024 while the Applicant was holding a meeting with about 16 fellow IPOB members at his home, about 10 members of the Nigerian Army and the Department of State Services (“DSS”) stormed the place to arrest them, but he managed to make his escape and fled to Kogi State where he took shelter in a friend’s place for 2 months, during which he was informed by other IPOB members that his parents had been killed by the DSS and Nigerian Army who also set fire to his home.     

5.Fearing that he would inevitably be tracked down by the authorities and killed, the Applicant with the help of his friend and by bribing the airport officials managed to leave Nigeria on 26 May 2024 for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 13 January 2025 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).         

6.By a Notice of Decision dated 13 February 2025 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the Nigerian Army/DSS upon his return to Nigeria as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence that he had been specifically targeted by the Nigerian authorities or of any real intention of them to seriously harm or kill him, and that reliable and objective Country of Origin Information (“COI”) show the Nigerian government have taken steps to prevent abuses by the security forces and to improve law and order as well as the human rights conditions of the country to ensure that its citizens would be entitled to due process in the court of law that state protection would be available to the Applicant from abuses by the security forces that it is not accepted that he would face any real risk of harm from the Nigerian Army/DSS or the authorities upon his return to Nigeria that his claim for non-refoulement protection failed on all the applicable grounds.

8.On 24 February 2025 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 9 April 2025 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 23 April 2025, his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision[1]  the Board did not take any real issue with the Applicant’s claim of being a member and Zone Director of IPOB or of his account of the incident in February 2024 that caused him to fear of being harmed or persecuted by the Nigerian authorities that led him to leave Nigeria for non-refoulement protection, and accepted that he might fear being targeted by the Nigerian Army/DSS due to his political opinion upon his return to Nigeria, but found his such stated fear not well-founded as there was no credible evidence that he was known to the Nigerian Army/DSS as an IPOB leader or that he was an activist at any stage such that the Nigerian authorities might be aware of him or that he had ever been personally targeted or troubled by the state particularly after his promotion to be a Zone Director that he would be persecuted by the Nigerian authorities other than his own speculation and conjecture, nor was there any reliable evidence that those 10 men who stormed his home in the February 2024 incident were indeed from the Nigerian Army or DSS other than hearsay from the security guard stationed at the entrance of his home that no weight could be placed thereon that it was not accepted that the Nigerian Army/DSS had personally targeted the Applicant on that day or at all, and that there was nothing to suggest that the Nigerian authorities would be unable or unwilling to assist him should he be arrested for being a member of IPOB or that he would be denied state protection or due process including access to bail and to the courts upon his return to Nigeria, as relevant COI showed that past IPOB leaders and activists including their leader Nnamdi Kanu had been so extended due process and granted bail by the authorities even after being charged with treason against the state that the Board concluded that the Applicant’s claim for non-refoulement protection failed on all applicable grounds.    

10.On 26 May 2025, the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just repeated his claim as before of his fear of being harmed or killed or persecuted by the Nigerian Army or the DSS or the Nigerian authorities that he cannot return to Nigeria, nor did he request any oral hearing for his application.

11.Nevertheless, given the seriousness of the issue at hand and that the Applicant’s claimed risk of harm or persecution that he would face upon his return to Nigeria from the state in the form of the Nigerian Army and/or the DSS due to his political opinion, and in which case that state protection or internal relocation may not be available or applicable, high standards of fairness would require the Court to adopt an enhanced standard in scrutinizing the Board’s findings and reasons for rejecting his non-refoulement claim.

12.In doing so it would be relevant to first note that the Board accepted that if the risk of harm indeed comes from the state that the Applicant would have no expectation of protection in Nigeria given the fact that IPOB has been proscribed as a terrorist organization (see [35] of the Decision).

13.The Board then proceeded to make the following findings in its consideration and analysis of the Applicant’s claim of fear of persecution by the Nigerian Army/DSS upon his return to Nigeria due to his political opinion or involvement with IPOB:

“44. In the Board’s view, the Appellant’s stated fear of the Nigerian Army/DSS lacks any evidential basis and is entirely speculative. Indeed, it is clear that his fear is based on what he believes the Nigerian Army/DSS might do to him as a result of his affiliation with IPOB since 2021, and particularly since he became a Zone Director in 2023.

45. However, on the evidence, there was nothing to suggest that the Nigerian Army/DSS would personally target the Appellant because of his IPOB affiliation.

46. Whilst I accept that IPOB was declared a terrorist organization by the Nigerian government in September 2017 and the activists declared illegal, the Board is required to assess whether the Appellant himself has any personal risk:

‘Risk analysis

The acts to which individuals under this profile could be exposed are of such severe nature that they would amount to persecution (e.g. killing, death penalty, arbitrary arrests).

Not all individual under this profile would face the level of risk required to establish well-founded fear of persecution. The individual assessment of whether or not there is a reasonable degree of likelihood for the applicant to face persecution should take into account risk-impacting circumstances, such as: level and nature of involvement, visibility of the applicant (e.g. high profile, prior arrest, media appearance), participation in gatherings or manifestations, etc.’ ”

47. There is no reliable evidence that the Appellant was known to the Nigerian Army/DSS as an IPOB leader (as he claims) or otherwise. Nor is there any evidence that he was an IPOB activist at any stage such that the state might generally be aware of him.

48. What is, however, clear is that he does not appear to have ever been personally targeted. As stated, he claims to have been an IPOB member since 2021 and was promoted to Zone Director in 2023. Yet he was never troubled by the state, particularly after his promotion to a “leader.”

49. As to the incident in February 2024 (above): first, he does not know who had allegedly come to the junction of the main road near his home that day. That he assumes they were from the Nigerian Army/DSS is based entirely on the hearsay evidence of the security guard stationed outside.

50. At the same time, he never saw the 10 individuals at the material time (even though his papers suggest that they had actually stormed the meeting). He also does not know their identities. Again, he seems to have simply accepted the hearsay evidence of the security guard, without having made his own enquiry.

 51. As stated above, it is clear that such evidence is inherently unreliable as it cannot be tested. As such, the Board cannot place any weight on it and does not accept that the Nigerian Army/DSS personally targeted him on that day or at all.

52. Even if he were a Zone Director, given that he was never troubled by the Nigerian Army/DSS after his promotion suggests that it is unlikely that they would have any reason to target him for harm or death today. On the reliable evidence, the Appellant has no credible basis for his apparent fear under this head.

 53. From the above, it was clear from the evidence presented by the Appellant that his fears stem almost entirely from speculation and conjecture, without any evidence to support the matters alleged.

54. Additionally in considering the evidence there was no, or no reliable evidence to show (and the Board does not accept) that:

(1) The Nigerian Army/DSS are interested in the Appellant. Although he claimed to be a target of the Nigerian Army/DSS because of his IPOB affiliation, there is no credible evidence before the Board that he was ever personally targeted by them in the past. There is also no reliable evidence that they would be personally targeted him, if refouled;

(2) He would face any problems across Nigeria. There is nothing to suggest that he would be harmed simply because of his IPOB connection, which itself has not been established. Even though he might believe that he would be targeted because of political opinion, there is nothing to suggest, for this or any other reason, that the Nigerian authorities would be unable or unwilling to assist him or that he would be denied state protection in the form of due process, including access to bail and to the courts. Past IPOB leaders and activists at the forefront of the movement (which the Appellant is not) have been extended due process and granted bail by the authorities even after being charged with treason against the state;

(3) The Appellant was subjected to physical suffering of the requisite severity. The Appellant has never been harmed let alone confronted by his claimed aggressors;

(4) The state of Nigeria was unwilling to help the Appellant for a RC reason. He has never sought the help of the police or other organizations. There is nothing from the evidence to suggest that the state would be unable or unwilling to help the Appellant in the future.”

14.Whilst accepting that the Applicant might fear being targeted by the Nigerian Army/DSS, the Board then referred to the guidance of the UNHCR Handbook on persecution due to political opinion, and concluded that the Applicant’s fear was not well-founded, and rejected his claim under persecution risk as follows:

“65. I am prepared to accept that the Appellant might fear being targeted by the Nigerian Army/DSS because of political opinion. As such, in considering whether he would be perceived as a result, the following is relevant:

‘83. An applicant claiming fear of persecution because of political opinion need not show that the authorities of his country of origin knew of his opinions before he left the country. He may have concealed his political opinion and never have suffered any discrimination or persecution. However, the mere fact of refusing to avail himself of the protection of his Government, or a refusal to return, may disclose the applicant’s true state of mind and give rise to fear of persecution. In such circumstances the test of well-founded fear would be based on an assessment of the consequences that an applicant having certain political dispositions would have to face if he returned’ (Emphasis added)

66. However, based on the above analysis, including the lack of evidence pointing to him being a personal target of the Nigerian Army/DSS, the Board does not find the Appellant’s corresponding fear to be well-founded.”        

15.From the above it seems clear that the Board did not make any finding against the Applicant’s account of events in that incident in February 2024 that they did not occur as alleged or that it was not credible for any given reasons, nor was the Applicant’s evidence  challenged by the Adjudicator at the hearing, but somehow the Board came to the view that there was nothing to suggest that the Nigerian Army/DSS would personally target him due to his IPOB affiliation as there was no reliable evidence that he was known to them as an IPOB leader or IPOB activist at any stage that the state might generally be aware of him, and that in any event it was merely the Applicant’s own speculation based on hearsay that those men who stormed his home on that day were members of the Nigerian Army/DSS.     

16.Henceforth the first obviously question that springs to mind is that: Given the Applicant was then the Zone Director of IPOB, a terrorist organization declared by the Nigerian government, and on that day in February 2024 that he was holding a meeting with 16 IPOB members when some 10 men said by the security guard stationed at his home to be members of the Nigerian Army/DSS who stormed the place, what is it in such evidence that the Board found inherently unreliable that it could not place any weight, and why could it not accept that the Nigerian Army/DSS had personally targeted the Applicant on that day or at all? In other words, what were there in the evidence that led the Board to not believe that those men were sent by the Nigerian authorities to arrest declared terrorists such as the Applicant and his fellow IPOB members who were meeting up in his home in that February incident?  

17.Having thus scrutinized the Board’s decision, I am unable to find any proper basis for the Board not to accept that the Applicant had been targeted by the Nigerian authorities in that incident of  February 2024, and hence it follows that there was also no basis for the Board to find that the Nigerian authorities would not be personally targeting him if refouled given his claim of the subsequent killings of his parents by the Nigerian Army/DSS who also set fire to his home, of which again the Board also did not appear to have taken any issue with, or that the Nigerian authorities in the circumstances would be willing to assist the Applicant with state protection in view of his past IPOB affiliation, and on the basis of the relevant COI referred to by the Director and available before the Board that the Nigerian authorities clearly view IPOB as a significant threat to the territorial integrity of the Nigerian state, that they have branded the organization as a proscribed terrorist organization without differentiating between its main body or its armed wing, and that the security forces have taken active steps to crack down on pro-Biafran independence bodies, in particularly IPOB (see [14] – [16] of Director’s decision).

18.Granted that the Board did refer to relevant COI to show that past IPOB leaders and activists at the forefront of the movement such as Nnamdi Kanu had been extended due process and granted bail by the authorities after being charged with treason against the state, it does not necessary follow that the same would be extended to those members such as the Applicant who were not leaders and therefore away from the attention of the international media, or that as such the Applicant would not be at risk of being subjected to ill-treatments or torture in the event of any interrogations or detention by the Nigerian authorities upon his refoulement, of which the Board did not appear to have conducted any or sufficient inquiry from relevant COI so as to comply with high standards of fairness when considering the Applicant’s claimed risk.

19.In the premises, and for these reasons I am of the view that the Applicant’s intended application for judicial review of the Board’s decision is reasonably arguable on the grounds that (i) the Board erred in law or was irrational in finding no reliable evidence that the Applicant had ever been personally targeted by the Nigerian authorities or that they would be personally targeting him if refouled; and (ii) that the Board failed to make any or sufficient inquiry from relevant COI that the Applicant would not be denied state protection in the form of due process including access to bail and to the courts and/or that he would not face any risk of being subjected to ill-treatments or torture in the event of his interrogations or detention by the Nigerian authorities upon his refoulement, and thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

20.Accordingly, I grant leave to the Applicant to apply for judicial review of the Board’s decision on the grounds stated above, and direct that he shall file and issue the originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.                   

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