Case Document

100%Judiciary

HCAL 2891/2019 and HCAL 2276/2023

(Heard together)

[2025] HKCFI 6241

HCAL 2891/2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2891 of 2019

BETWEEN
	Ahibafu Jennifer Oluchi	Applicant
	and
	Torture Claims Appeal Board/	Putative
	Non-refoulement Claims Petition Office	Respondent
	and
	Director of Immigration	Putative
		Interested Party

AND

HCAL 2276/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2276 of 2023

BETWEEN
	Ahibafu Jennifer Oluchi	1^st Applicant
	Ahibafu Nnenna June Ozoemenam	2^nd Applicant
	and
	Torture Claims Appeal Board/	Putative
	Non-refoulement Claims Petition Office	Respondent
	and
	Director of Immigration	Putative
		Interested Party

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 Applicants being present in open court;

Order by Deputy High Court Judge K.W. Lung:

1. Leave for the applicants to apply for Judicial Review against the Board’s Decision be refused; and

2. Non-compliance with Order 80, rule 2 of the RHC in these proceedings be treated as a mere irregularity without rendering the daughter’s application a nullity.

Observations for the Applicants:

THE APPLICATION

1.The 1^st applicant is the mother (“the mother”) of the 2^nd applicant, aged 3, a minor (“the daughter).

2.The mother lodged her claim for non-refoulement with the Director of Immigration (“the Director”), who refused her claim. She appealed to the Torture Claims Appeal Board (“the Board”), which dismissed her appeal. She issued Form 86 for leave for judicial review of the Board’s decisions in HCAL 2891 of 2019.

3.On behalf of the daughter, the mother lodged a non-refoulement claim, based upon the facts of her case. The Director refused her application. She appealed to the Board, which dismissed her appeal. On behalf of the daughter, the mother issued Form 86 for leave for judicial review of the Board’s decisions in HCAL 2276 of 2023.

4.Since both actions have common facts and legal issues, for better case management, this Court ordered that they should be heard together.

5.The mother appeared before the Court on 19 November 2025.

6.I shall now deal with their respective cases below.

HCAL 2891 of 2019

The mother

7.The mother is a national of Nigeria. She came to Hong Kong and worked as a domestic helper on 25 July 2017. Her contract terminated pre-maturely, but she did not depart. She surrendered to the Immigration Department on 19 November 2018 and lodged her non‑refoulement claim on the basis that, if refouled, she will be harmed or killed by:

(1)  her father’s creditor because she failed to repay her late father’s debt;

(2)  her paternal uncles, who wanted to take over her father’s share of the ancestral properties; and

(3)  her ex-employer Stanley because she left her employment.

8.She further raised that if she returns to Nigeria, she will be discriminated and treated unfairly by the Nigeria police because she is a lesbian.

9.Her late father had borrowed money from the creditor because his business failed and he had to pay the medical expenses for his wife. Her paternal uncles had given some money to her mother for her late father’s funeral. But they asked for her late father’s share in the ancestral estate. When she worked in Hong Kong for Stanley, Stanley did not pay her wages. She sued him at the Labour Department and subsequently left her employment. Details of her story are set out in the Board’s Decision. See hyperlink.

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL002891_2019_files/1st_Board's_Decision.pdf

The Director’s Decision

10.The Director considered the mother’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”).

11.By way of Notice of Decision dated 27 May 2019 (“the Director’s Decision”), the Director dismissed her claim for the reason that it was unsubstantiated.

The Board’s Decision

12.The applicant appealed the Director’s Decision to the Board. On 14 August 2019, the Board conducted an oral hearing for her appeal. She had given oral evidence and answered the Board’s question.

13.Having considered the evidence, the Board made the findings below.

(1)  Under the law of Nigeria, the Applicant is not liable for her late father’s debt. The late father’s estate will be responsible. Her brother Felix should be responsible for sorting out the matter. [41]

(2)  The paternal uncles’ target should be her brother Felix, not her, because Felix would inherit her father’s share of the ancestral estate. [41( c)] – [42]

(3)  Stanley had breached the labour law in Hong Kong. It is only speculative for him to harm or kill her if she returns to Nigeria. [42]

(4)  She had admitted she had 5 previous heterosexual relationships in Nigeria. She might have mistaken her friendship with Rachel, a friend in Hong Kong, to be a true reflection of her sexual orientation. [43] According to studies on LGBT behavior, it is at puberty or adolescence that youths discover their sexual orientation and it is unusual at her age of 24. [63]

(5)  State protection will be available if she returns to Nigeria. [66]

(6)  Internal relocation is viable. [71]

14.It therefore dismissed their appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review

15.The applicants filed Form 86 on 2 October 2019 for leave to apply for judicial review of the Board’s Decision. In support of her application, the mother has raised that she was not given a chance to reply to submissions made by the representatives of the Director and that the Board relied on the source of news not officially recognized and some outdated cases to reach speculations that it is safe for her to return to Nigeria.

Discussion

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 applicants’ 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. The applicants appeared before me and said that she had a younger son who had not applied for non-refoulement claim and she would make the application for him as well. She further said that she had applied for legal aid, but her application was rejected.

18.The reasons under paragraph 15 are only her bare allegations without any evidence in support. They are not valid to challenge the Board’s Decision[1].

19.The mother fails to show that her intended application has any reasonable prospect of success.

20.Accordingly, I dismiss her application.

HCAL 2276 of 2023

21.This is a separate consideration of the daughter’s claim by the Board.

22.The daughter was represented by a duty lawyer and the Director was also represented by a government counsel.

23.Details of the facts in relation to the daughter’s case are set out in Decision dated 26 October 2023 (“the Board’s Decision”). See hyperlink.

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL002891_2019_files/2nd_Board's_Decision.pdf

24.The mother has raised that the daughter may be discriminated if she returns to Nigeria.

25.Having considered the evidence and legal submissions from the parties, the Board made the findings below.

(1)  The mother’s claim has failed.

(2)  Internal relocation in south Nigeria is viable. [64]

(3)  In Nigeria, free education up to secondary level is provided by the state and the daughter will not be discriminated. Also, the alleged harm or discrimination is only speculative and not real. [64]

(4)  State protection will be available. [68]

26.Applying the same legal principles as in the mother’s case to this application, I find that the daughter fails to raise any reason for this Court to interfere with the Board’s findings.

27.As such, the daughter fails to show that she had any reasonable prospect of success in her intended application for leave for judicial review of the Board’s Decision.

Disposition

28.I refuse to grant leave to the applicants to apply for judicial review of the Board’s respective Decisions. Accordingly, I dismiss their respective applications.

29.I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the daughter’s application a nullity.

Dated the 23^rd day of December 2025

(Annson CHEUNG)(Ms)
for Registrar, High Court

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

Notes for the Applicants: If leave has been granted, the Applicants or the Applicants’ solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicants propose to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicants on 23/12/2025 Ahibafu Jennifer Oluchi and Ahibafu Nnenna June Ozoemenan Applicants’ ref. no: Nil		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 23/12/2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 15972/19/6/12/NI1302; USM 21510 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 255/19 (formerly RBCZ 10190/19); QA T/C 1303/22 (formerly RBCZ 5001180/22)(T4S18) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:

“20. … … 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: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”

Cites 5 cases

Cases cited in this judgment

Nupur Mst v. Director of Immigration

Re Salim Ahmed Alias Md Salim