Nnamani Obinna Jude v. Torture Claims Appeal Board

HCAL 1315/2023

[2025] HKCFI 4597

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1315 OF 2023

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant or counsel in open court;

Order by Deputy High Court Judge Michael WONG:

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

2.  The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

3.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 31 July 2023, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 21 July 2023 (“the Board’s Decision”).  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2023/HCAL001315_2023_files/the_Board's_Decision.pdf

2.The Board found that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the Unified Screening Mechanism (“the USM”).  Hence, the Board refused his appeal/petition and confirmed the decision of the Director of Immigration (“the Director”) dated 8 September 2020.

Amendments

3.In Form 86, the applicant named the Board and Non-refoulement Claims Petition Office as the putative respondents, when only the Board should be the putative respondent. 

4.The Non-refoulement Claims Petition Office should not be named as a party at all, as it is just an office providing administrative and secretariat support to the adjudicators of the Board.

5.The applicant named the Director as the putative interested party but missed the word “of” in the Director’s name.

6.Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

The applicant’s case

7.It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

8.In sum, the applicant claimed for non-refoulement protection because he feared that, if refouled to Nigeria, he would be harmed or killed by agents of the Nigerian government due to his connection with the Indigenous People of Biafra (“IPOB”).

Withdrawal of the Leave Application

9.By way of affidavit dated 10 January 2025, the applicant made an ex parte application to close his judicial review application.  In the affirmation, the applicant stated that:-

“That I have settled my torture claim case and wish to close it, hence I want to exit out of Hong Kong.”

10.There is no evidence to show that the applicant made the above withdrawal application other than out of his own volition.  With this withdrawal application, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing of the Leave Application even though he had previously requested one.

11.However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

12.Thus, it is just not right to leave the action at large by granting leave to withdraw to the applicant.  This court will proceed to determine the merits of the Leave Application.

Grounds for judicial review

13.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

14.The applicant did not advance any ground for the intended judicial review in Form 86, nor in his supporting affidavit dated 31 July 2023. 

Discussion

15.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

16.Thus, despite the fact that the applicant did not advance any ground for the intended judicial review, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

17.The applicant was afforded an oral hearing before the Board on 17 May 2023 and the applicant was present.  Thus, the applicant did have the opportunity to present his case to the Board in person.

18.As can be seen from the Board’s Decision, the Board did examine the applicant’s claims in details and questioned the applicant regarding his claims extensively.  Having considered all the evidence before it, the Board had cumulatively significant concerns regarding the truth of central aspects of the claims and evidence advanced.

19.The applicant’s claimed elevation in IPOB to the role of “Zonal Leader” was owed in part to his reputation as “spokesperson” for IPOB in his local area.  However, when pressed on what that involved, he conceded that he never spoke at gatherings.  The Board found that at most, his evidence described him handling out flyers with other IPOB supporters and encouraging others to join IPOB.  Based on the evidence overall, while the Board accepted that the applicant supported IPOB and attended some IPOB events in the past, the Board did not accept the following:-

(1)  the applicant was an IPOB member, active supporter, campaign leader, zonal leader, information leader or information minister;

(2)  the applicant was ever beaten, injured or detained by the Nigerian Army as claimed;

(3)  the applicant’s rented home was visited or damaged by the Army;

(4)  the applicant had, at the time he left Nigeria, an individual profile linked to IPOB either as a formal member or leader, even at a local level;

(5)  the applicant was an individual of adverse interest to the Nigerian authorities.

20.The applicant admitted that he came to Hong Kong for business purposes, and was only informed by his friend and neighbour in Nigeria named Arinze that Nigerian soldiers came and damaged his rented home in Onitsha, telling Arinze that they would kill the applicant when they saw him.  However, the Board found from the applicant’s own evidence that he continued to live in that rented premises until he moved to Enugu in July 2019, which was around 8 months after he claimed to have been detained and mistreated by the Army at the barracks.  The Board explicitly explained to the applicant that his claimed fear of serious harm, torture and/or death by the Nigerian authorities, in circumstances where he claimed they knew where he lived and came there often in search of him, was very difficult to reconcile with his willingness to return to that home at all. Further, he was not harmed in any way in the 8 or so months when he continued living there after his claimed release from detention in November 2018, nor was he approached at his workplace where he told the Board he continued to work until he left Nigeria.

21.Significantly, the Board found out that the applicant brought a note into the Board’s hearing which summarised material facts in his claim, including the injuries he sustained in the lead up to his only period of detention in Nigeria, the duration of that detention and the physical environment of his place of detention.  After the short break in the course of the hearing, the Board found that the applicant, despite being explicitly asked to leave all the documents in the hearing room, removed the note from the hearing room and threw it in the toilet.  When asked why he did that, the applicant said that he did not flush it, but ripped it and threw it in the bin. Thus, while there was some consistency between the applicant’s oral evidence at the Board’s hearing and his written claims on those issues, the Board could not place weight on that consistency as evidence of lived experience (as opposed to learnt and practised claims).

22.The Board also found significant, unexplained inconsistencies such as the injuries the applicant suffered during the one physical assault he claimed to have experienced.  The applicant was unable to explain why he required admission to a medical facility for an entire month and was unable to name that medical facility.  He also referenced his stay at that facility to a serious knee injury which was not mentioned in his 2020 statement, which was prepared with the assistance from a lawyer and an interpreter.

23.As the applicant also referred to the general insecurity in Nigeria as a reason he did not want to return there, the Board had discussed the country information of Nigeria with him.  The Board accepted that Igbo youth in Nigeria were disproportionately disadvantaged socially, economically and politically in Nigeria.  However, the applicant’s personal circumstances indicated that he had had an education, undertaken an apprenticeship and held continuous employment in Nigeria over many years, up to the time he departed Nigeria.  His evidence indicated that he had been able to support himself for many years in Nigeria.  The Board did not accept that he faced a real chance of general disadvantage which arose to the level of serious or other harm contemplated under any of the USM grounds in Nigeria.

24.The Board accepted that Igbo youth, who were active and/or perceived as “agitators” for Biafran separatism, especially those with perceived links or active involvement with IPOB or its military wing, faced heightened risks of adverse attention, serious harm, suppression and even death by the Nigerian authorities. However, the Board did not accept that the applicant had ever had an individual profile connected with those organisations, or that he had ever supported Biafran advancement by active involvement or membership to a particular Biafran movement, or that he had any intention to do so in the reasonably foreseeable future.  On that basis, the Board did not accept that the applicant would come to the adverse attention of the Nigerian state or state-sanctioned non-state actors in the reasonably foreseeable future, or that he faced a real chance of serious harm, torture or death anywhere in Nigeria in the reasonably foreseeable future for any of the reasons claimed.

25.In view of the Board’s findings as summarised above, the Board found that the applicant’s claim failed on all the applicable grounds under the USM.

26.The Board did not consider availability of state protection and viability of internal relocation.  However, as the applicant’s claims and the matters giving rise to his claims for non-refoulement protection were rejected in their entirety, it is therefore not necessary for the Board to consider the availability of state protection.

27.As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that he qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997).  In other words, internal relocation only arises if the applicant has established a real risk of persecution in his home area (see Gardi v SSHD [2002] 1 WLR 2755).

28.As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to consider internal relocation.

29.The assessment of evidence and risk of harm was primarily within the realm of the Board.  The Board was entitled to make its own decision.  This court finds nothing wrong or unreasonable in the way the Board reached its decision. 

30.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof.  The Board also correctly identified the issues and observed a very high standard of fairness.  This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

31.Thus, there is no merits in the Leave Application at all.

32.Moreover, as the applicant had confirmed that he had settled his torture claim case, he wished to close his case and wanted to exit out of Hong Kong, it is clear that he no longer needs non-refoulement protection and the Leave Application serves no practical purpose.

33.It is well established that the court may exercise discretion not to grant a remedy on judicial review if it would serve no practical purpose, where it may have become otiose or pointless to grant a remedy because the relevant detriment to the applicant has been removed (see AW v Director of Immigration and William Lam, CACV 63 of 2015).

34.It is therefore otiose and pointless to grant leave to the applicant to proceed with the intended judicial review, and hence the Leave Application ought to be dismissed.

35.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that the intended judicial review has no realistic prospects of success at all, and hence the Leave Application must be dismissed.

Conclusion

36.For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed.

Dated the 8^thday of October 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