Ohanebo Chidiebere v. Torture Claims Appeal Board

HCAL 3526/2019

[2025] HKCFI 5077

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3526 OF 2019

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 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 decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 22 November 2019”.

2.  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 27 November 2019, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision “REF (15) in USM 14352/18/11/195/N1253 2 SEPTEMBER 2019”.

2.The Torture Claims Appeal Board (“the Board”) made a decision dated 22 November 2019 (“the Board’s Decision”) regarding the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 29 October 2018 (“the Director’s Decision”), which rejected the applicant’s non-refoulement claim.

3.The date “2 SEPTEMBER 2019” was actually the date of the Board’s hearing. When this court asked the applicant at the oral hearing before this court on 7 August 2025 to confirm the date of the decision in respect of which relief was sought, the applicant confirmed that it was 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/2019/HCAL003526_2019_files/the_Board's_Decision.pdf

4.The Board found that the applicant had failed to establish his case on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board rejected and dismissed the applicant’s appeal/petition against the Director’s Decision and affirmed the same.

Amendments

5.In Form 86, the applicant named the Board and “NON-REFOULMENT CLAIMS PETITION OFFICE” as the putative respondents, when only the Board should be the putative respondent.

6.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.

7.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.

8.As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision. Thus, on this court’s own motion, the decision in respect of which relief is sought is amended to “Torture Claims Appeal Board’s decision dated 22 November 2019”.

The applicant’s case

9.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.

10.In sum, the applicant claimed for non-refoulement protection because if returned to Nigeria, his half-brothers, Cosmos and Ambrose, would harm or kill him as he had a land dispute with them. He also feared that as a Christian he would be harmed or killed by Boko Haram.

Oral hearing

11.The applicant requested for an oral hearing of the Leave Application and his case was heard on 7 August 2025.

12.When this court asked him for the grounds for the intended judicial review, the applicant merely said that his life was still in danger and if he returned to his home country, he would be killed by his enemies. The applicant also alleged that the Immigration Department relied on untrue country of origin information (“COI”) to make the decision. When asked which COI should not be relied upon by the Board, the applicant just said that he could not register his land in Africa that was inherited from his father. The Immigration Department told him to go to Africa to obtain documents for his land but he could not produce any supporting documents.

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 his intended judicial review in Form 86, nor in his supporting affidavit dated 27 November 2019. In the supporting affidavit, the applicant merely stated some backgrounds facts of how he came to Hong Kong to escape from his enemies. He also produced a CD Rom containing a video clip, which allegedly was evidence of a person being killed secretly by the Nigerian army without judicial process. The applicant feared that Cosmos and Ambrose would send someone to kill him too.

15.As aforesaid, the applicant failed to advance any ground at the oral hearing before this court, save that he had made an allegation that the Immigration Department had relied on some untrue COI without giving any particulars.

Discussion

16.First of all, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”. Thus, the applicant’s mere allegation that the Immigration Department had relied on untrue COI without specifying which COI was untrue cannot assist him.

17.The video clip contained in the CD Rom submitted by the applicant cannot help him either, as it is not permissible for this court to consider new evidence. As held in Trinh Thuy Huyen v Torture Claims Appeal Board [2024] HKCA 1090, the Board had no duty to make investigation into any matter without the applicant raising it and it should not be considered by this court at this stage.

18.Further, as held in Nupur Mst v Director of Immigration [2018] HKCA 524, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition.

19.Thus, the applicant cannot rely on any materials not placed before the Board as a ground for his intended judicial review, and there is no reason for this court to allow him to submit new evidence.

20.The applicant has therefore failed to advance any valid grounds for his intended judicial review.

21.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 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, supra).

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

23.In assessing the applicant’s appeal/petition, the Board held an oral hearing on 2 September 2019 and the applicant was present. Thus, the applicant did have the chance to present his case to the Board in person.

24.After due consideration of the applicant’s case and the evidence, the Board found the applicant’s evidence that he came to Hong Kong because he wanted to seek protection not credible as his actions were not consistent with his statement.

25.The applicant last entered Hong Kong in August 2013 and did not seek protection until after his arrest in April 2016. Prior to that, the applicant came twice to Hong Kong in 2007 and 2008 but he did not seek protection either, despite his allegation that one of the two purposes of coming to Hong Kong in 2008 was to “disappear for a while for his safety”. In fact, on both occasions, he returned after purchasing goods.

26.The Board found that this inconsistency brought the credibility of the rest of the applicant’s evidence into doubt. The Board found the applicant’s evidence of his fear for his life because of threats of harm from Cosmos and Ambrose not reliable.

27.The Board found that the applicant’s fear of his half-brothers clearly related only to a dispute concerning family inheritance in land and did not show any involvement of a government official acting in any official capacity.

28.The Board further found that the injuries that the applicant allegedly suffered were not serious and the fear that his half-brothers would kill him was mere speculation without evidence in support.

29.In addition, the Board was of the view that internal relocation was viable for the applicant. The Board found the applicant’s assertion that Cosmos and Ambrose could locate him when he was staying in Onitsha speculative and there was no evidence to prove it.

30.As to the applicant’s fear of being killed by Boko Haram, the Board considered that those were generalized fear but the applicant had no actual evidence of any likelihood of being harmed by Boko Haram or their people. The applicant was in no different situation from other Christian members of his compatriots living in the same area as he, of encountering members of Boko Haram and their people. The applicant had not established that he himself was specifically targeted by Boko Haram and their people with the intention to harm or kill him.

31.With regards to state protection, the Board had come to its independent finding that the Nigerian government had taken steps to protect its citizens and improve the administration of government in various ways. The Board thus concluded that there were avenues for the applicant to seek help and justice in Nigeria if he resorted to them.

32.Based on its findings that the applicant’s fear from his half-brothers was not credible and that the fear from Boko Haram was not personal, the Board concluded that the applicant had failed to establish his case on all the applicable grounds under the USM.

33.The finding of facts, including the assessment of evidence, country of origin information 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.

34.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.

35.In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that 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 applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

36.For reasons aforesaid, the Leave Application is dismissed.

Dated the 23^rd day 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