Agbara Austine Anyigadi v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3300/2019

[2025] HKCFI 3648

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3300 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.

Observation for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 4 October 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing his appeal against the Director’s Decision as described below.

2.The applicant asked for a hearing. However, he was absent at the hearing on 18 July 2025. I shall deal with his application on the papers.

The applicant

3.The applicant is a national of Nigeria. He is an illegal immigrant, having come to Hong Kong on the pretext that he was an engineer to attend the Hong Kong Electronics Fair (Spring Edition) organized by the Hong Kong Trade Development Council. He overstayed and surrendered to the Immigration Department on 27 April 2017. He lodged a non-refoulement claim with the Director of Immigration (“the Director”) on the basis that, if refouled, he will be harmed or killed by Boko Haram, an Islamic terrorists group, which targeted at Christians. He was born a Christian. In 2016, people of Boko Harm came to his house where they killed his father in front of him. He managed to escape. Before the Board, he further said that another group, namely the Fulani Herdsman had teamed up with Boko Haram to target more people. On the street, he was warned by a man dressed in an Islamic gown and wearing a turban approached him and warned him the his life was at stake. He therefore fled Nigeria for Hong Kong.

4.Details of his claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003300_2019_files/the_Board's_Decision.pdf.

The Director’s Decision

5.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”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim because it was unsubstantiated. The Director further found that state protection will be available and internal relocation is viable if he returns to Nigeria.

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 9 May 2019, the Board conducted an oral hearing for his appeal. The applicant had given oral evidence and answered questions from the Board.

8.Having considered the evidence, the Board found that although it accepted his evidence that Boko Harem people had killed his father, they did not have the intention of harming him if he returns to Nigeria. [61] & [65] The Board found that the applicant does not face a real risk of harm from the Boko Haram or Fulani Herdsmen. [68] The Board finally found that it is viable for the applicant to relocate himself to one of those locations, such as Lagos, Ibadan, or Benin City. [74]

9.For those reasons above, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

10.The applicant has filed Form 86 dated 5 November 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 Decision.

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 19^th day of September 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