Uchechukwu Sunday Anthony v. Torture Claims Appeal Board

HCAL 3218/2019

[2025] HKCFI 4224

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3218 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.

THE APPLICATION 

1.The applicant applies for leave to apply for judicial review of the Decision dated 21 October 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 August 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 entered Hong Kong as a visitor but overstayed since 26 September 2008. He was arrested by police and referred to the Immigration Department where he lodged a non-refoulement claim on the basis that, upon refouled, he will be harmed or killed by his brother Martin because of personal grudges between themselves.

4.According to the applicant, Martin hated him simply because he was favoured by his parents.

5.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/HCAL003218_2019_files/the_Board's_Decision.pdf.

The Director’s Decision

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

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

(2)  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”);

(3)  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

(4)  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 26 September 2018 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated. Besides, state protection is available and internal relocation is viable, which will mitigate or neutralize the applicable risks.

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 30 July 2019, the Board conducted an oral hearing for his appeal. He had given oral evidence and answered the Board’s questions.

9.Having considered the evidence before it, the Board made the following findings, dismissed his appeal and confirmed the Director’ Decision.

(1)  He had fights with Martin and he had sustained some injury during the fights; however, the Board did not find that the injuries were serious or life threatening. [115]

(2)  Martin had dispossessed his mother and younger siblings of the family house and did not take care of his mother. But it did not accept that the applicant faced a real risk of harm at the hands of Martin. [118]-[119]

(3)  It did not accept there would be real risk of serious harm if he returns to Nigeria. [131]

(4)  Internal relocation will be viable. [146]-[151]

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

10.The applicant has filed Form 86 dated 29 October 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, the applicant did not raise any specific reason 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 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