Anumba Emeka Frank v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 47/2025, [2025] HKCA 786

On Appeal From [2025] HKCFI 132

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 47 OF 2025

(ON APPEAL FROM HCAL NO 1920 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.This is an appeal against the decision of Deputy High Court Judge K. W. Lung (“Judge”) on 21 January 2025[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 27 June 2019. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 15 October 2018 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Nigeria born in 1974. He last entered Hong Kong as a visitor on 1 December 2016 and was permitted to stay until 15 December 2016. He overstayed and surrendered to the Immigration Department on 16 December 2016, and also lodged his non-refoulement claim on the same day. The applicant’s claim was made on the basis that if he returned to Nigeria, a group called the Boko Haram (usually translated as “Western civilization is forbidden”) would harm or kill him as he was a Christian businessman in Adamawa State. The factual background of the applicant’s claim was set out at [11] of the Board’s decision.

3.By notice of decision dated 15 October 2018, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against him. Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]

4.The applicant appealed to the Board against the Director’s decision. An oral hearing was held on 5 March 2019, during which the applicant gave evidence and answered questions from the Board. In favour of the applicant’s credibility, the Board accepted that the applicant is a Christian who had conducted business in Lagos State and relocated his business to Adamawa State, that he was warned by the Boko Haram to leave Adamawa State, that his business was burnt down, and that he left Nigeria in part due to fear of harm from the Boko Haram. However, the Board found that the applicant was exaggerating the risk to him in Lagos from the Boko Haram or from the Fulani Tribesmen. It also found his other claims, about the authenticity of a submitted photograph and fear of the Fulani Tribesmen, not to be credible.

5.The Board proceeded to consider the risk of harm faced by the applicant if he was refouled to Nigeria. Although it accepted that there was a real risk that the applicant would be targeted for harm due to his religion by the Boko Haram if he returned to Adamawa State, the Board found there was in fact no real risk of harm if the applicant returned to Nigeria, because there was no state involvement, the problem was a localized one, and internal relocation back to Lagos (where he had lived and conducted business for a decade) was a reasonable option for him.

6.In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to Nigeria. By its written decision dated 27 June 2019, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.

The Judge’s decision in the court below

7.On 9 July 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision. He did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation. In the latter, he repeated his claim for non-refoulement protection and complained that the Board did not consider his case properly. He further annexed the hearing bundle for the hearing before the Board.

8.The Judge considered the application on the basis of the documents and the applicant’s submissions made at the oral hearing held on 16 December 2024. On 21 January 2025, the Judge issued his decision, refusing to grant leave to apply for judicial review. The reasons were set out in [16] to [21] of the Judgment as follows:

“ 16. 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).

17. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that the Board’s Decision is unfair because it did not accept his evidence.

18. 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.’

19. For the reasons given, the Board did not believe the applicant’s evidence. The applicant’s complaint that the Board did not accept his evidence is not sustainable because it is only a general assertion without any evidence in support. The Board is not bound to accept his evidence. His complaint that the Board did not look into his case properly is his bare assertion or opinion without evidence in support.

20. The applicant has not raised any valid reasons to challenge the Board’s Decision.

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

Appeal to this Court

9.On 4 February 2025, the applicant filed his Notice of Appeal against the Judge’s decision. His stated grounds of appeal were that the Director, the Board and the Judge failed to consider the supporting documents showing Boko Haram’s attacks on Christians in Nigeria, that they erred in their decisions in light of the assessment of all the available evidence, that they failed to take into account the applicant’s personal experience being targeted by the Boko Haram and reporting to the local police, that the Board should have granted leave to apply for judicial review having accepted that the applicant left Nigeria in part due to fear of harm from Boko Haram, and that the Judge erred by finding the applicant’s claim to be unsubstantiated.

10.As the applicant did not lodge any written submissions within the stipulated time as directed by the Registrar of Civil Appeals by way of letter dated 8 May 2025, the scheduled hearing of his appeal was vacated pursuant to the previous directions given by the Court.

11.After the date of the vacated hearing, the applicant lodged two letters to the Court on 3 July 2025. One letter explained that he did not receive the court’s letter about lodging skeleton arguments and that he requests to re-fix an oral hearing for his case. The other letter appears to be the skeleton submissions of the applicant for this case. In the skeleton submissions, the applicant repeats the basis of his claim for non-refoulement protection and invites the Court to make findings of fact in his case. He also states that the Board’s decision was affected by procedural unfairness due to its failure to consider the overwhelming evidence and country of origin information in favour of the applicant.

12.According to the court’s record, the directions given by the Registrar of Civil Appeals on 7 May 2025 were sent to the applicant at the applicant’s address on court file by post dated 8 May 2025 and the letter was not returned undelivered. Further, it appears from his letter that the applicant was aware of the date of the hearing (information that was also sent by way of post to the same address), despite his allegation that he was not aware of the Registrar’s directions on submission of skeleton argument (which was also sent by way of post to the same address on court record). We consider that the applicant has failed to provide any adequate explanation for this Court to exercise its discretion to restore the oral hearing. We shall accordingly determine the appeal on the basis of the available documents and materials, including the late skeleton argument.

Discussion

13.In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal. 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. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge, the appeal should be dismissed. It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

14.In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because there was no state involvement, the applicant’s problem was a localized one, and internal relocation back to Lagos would be a viable option for the applicant. These are findings of fact open to the Board based on the evidence it received and for the reasons it gave. The applicant has failed to show any reasonably arguable public law error in relation to the Board’s decision. His allegation that the Board’s decision was procedurally unfair is a bare assertion unsupported by any particulars or evidence.

15.Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision. We are not satisfied that there is any error in the Judge’s decision.

16.The applicant’s appeal is accordingly dismissed.

The Applicant, unrepresented, acting in person