Bachirou Adamou v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3100/2019

[2025] HKCFI 3137

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3100 of 2019

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 Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 24 September 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.The applicant asked for a hearing. However, he was absent at the hearing on 13 June 2025. I shall deal with his application on the papers.

The applicant

3.The applicant, aged 43, is a Nigerian. He is an illegal immigrant as he overstayed his visa and surrendered to the Immigration Department in December 2015. He lodged a non‑refoulement claim on the basis that, if refouled, he will be harmed or killed by members of Boko Haram because he refused to join them.

4.According to the applicant, members of Boko Haram forced him and his father to join them. Upon their refusal, they attacked them and vandalized their market kiosk. Ultimately, members of Boko Haram killed his father and elder brother and his other brother disappeared. He had to flee his country for Hong Kong for safety.

5.Details of his claim are set out at paragraph 10 of the Board’s Decision.

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.By way of Notice of Decision dated 30 October 2018 (“Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated. Besides, it found that state protection is available and internal relocation is viable, if he returns to his country, which will mitigate or neutralize the applicable risks.

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 7 May 2019, the Board conducted an oral hearing for his appeal and the adjudicator had made enquiries into the facts of his case.

9.Having considered the evidence, the Board found that his evidence was riddled with material inconsistencies and vague. It found that that the applicant was not a credible witness. It rejected his evidence in support of his assertions as to the attacks by Boko, Haram, death of his father and elder brother and disappearance of his other brother. It found that his claim was devoid of factual support. [39] See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003100_2019_files/the_Board's_Decision.pdf.

Application for leave to apply for judicial review of the Board’s Decision

10.The applicant has filed Form 86 dated 21 October 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affidavit in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

12.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).

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14.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.”

15.The applicant has raised no valid ground to challenge the Board’s findings.

16.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

17.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 26^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