Magi Thembinkosi Tsiyo v. Torture Claims Appeal Board
Read the full judgment text of HCAL 1040/2021 on BabelCite. This High Court CFI judgment was delivered on 20 May 2026.
1. By way of Form 86 dated and filed on 22 July 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision which was described as follows:-
Cites 3 cases
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HCAL 1040/2021 [2026] HKCFI 2909 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1040 OF 2021
Application for leave to apply for judicial review NOTIFICATION of the Judge’s decision (Order 53, rule 3) Following:
Order by Deputy High Court Judge Michael WONG:
Observations for the applicant: The leave Application 1.By way of Form 86 dated and filed on 22 July 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision which was described as follows:-
2.The Torture Claims Appeal Board (“the Board”) made a decision dated 5 May 2021 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 28 June 2018 (“the Director’s Decision”). 3.The applicant did mention the date of the decision in Form 86, but he put the date of the decision, ie “5th OF MAY 2021” and “DIRECTOR OF IMMIGRATION OFFICER”, as the putative respondent in Form 86. He also attached a copy of the Board’s Decision to his supporting affidavit dated 22 July 2021. Thus, it is clear that the decision in respect of which relief is sought in the Leave Application is the Board’s Decision. 4.The Board’s Decision can be viewed in the following hyperlink:- 5.The Board found that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds under the Unified Screening Mechanism (“the USM”). Accordingly, the Board confirmed the Director’s Decision, which rejected the applicant’s non-refoulement claim. Amendments 6.As aforesaid, the applicant named “5th OF MAY 2021” and “DIRECTOR OF IMMIGRATION OFFICER” as the putative respondent, and put “Judicial Review on Return to Nigeria [Lagos]” as the decision in respect of which relief is sought in Form 86. The applicant also failed to name any putative interested party. 7.In fact, the Board should be the putative respondent, the Director should be the putative interested party and the Board’s Decision should be the decision in respect of which relief is sought in the Leave Application. 8.This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”, to add “Director of Immigration” as the putative interested party, and to amend the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 5 May 2021”. 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.The Board accepted that the applicant is a national of both Nigeria and South Africa. His claim for non-refoulement protection was hence assessed on the basis of his risks upon return to both countries. 11.In sum, the applicant claimed for non-refoulement protection because of his fear of being ill-treated or killed by Boko Haram if he returned to Nigeria. He was also afraid of being harmed or killed in South Africa due to xenophobic attacks against foreigners. Oral hearing 12.The applicant requested for an oral hearing and his case was originally scheduled to be heard on 2 April 2026. 13.However, the applicant sent a letter dated 1 April 2026 to this court requesting for an adjournment of the hearing. He stated in the said letter that he did not receive this court’s letter informing him of the date of hearing, and he only came to know about the scheduled hearing because he received a call from a staff of this court on 1 April 2026. The applicant further stated that if he had known that there was a hearing, he would have instructed his legal team and he would have the opportunity to have legal representation. Moreover, the applicant stated that he was not medically well and enclosed a medical certificate to prove the same. 14.The applicant’s application for adjournment of the hearing was granted, and another hearing was fixed on 7 May 2026. 15.At the hearing on 7 May 2026, when this court asked the applicant about his legal team that was stated in his letter dated 1 April 2026, he confirmed that he did not accept the legal team’s offer and would act in person in the present proceedings. 16.When this court asked the applicant for his reason to have attached a number of supporting documents to his supporting affidavit, the applicant said that they were to show that he had been attacked twice, and his father, uncle and sister were all dead in the attacks. The applicant added that his life would be in danger if he was to return to his hometown. 17.When asked for his grounds of the intended judicial review, the applicant said that he did not agree with paragraph 177 of the Board’s Decision because it would still be unsafe if he moved to another region of his country as the whole country was dangerous. Grounds for judicial review 18.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). 19.The applicant did not identify any grounds for the intended judicial review in Form 86, nor in his supporting affidavit. 20.As aforesaid, the applicant said at the oral hearing before this court that he did not agree with paragraph 177 of the Board’s Decision, as it would still be unsafe for him even if he moved to another region of his country. Discussion 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 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). 22.Thus, this court will scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality as aforesaid. 23.The paragraph that is challenged by the applicant is paragraph 177 of the Board’s Decision, which reads as follows:-
24.As can be seen from the said paragraph, the conclusion of the Board, in essence, was that while the Board found that the applicant could not return to South Africa, he could return to Nigeria, in particular to a large urban city such as Lagos in order to avoid harm from those he fears in the north-eastern part of the country, the Middle Belt and Niger Delta. 25.This court notes that in determining the applicant’s case, the Board had considered very extensive, relatively update and fully-referenced country of origin information (“COI”). In particular, the Board drew conclusion from the COI that while the protracted insurgency of Boko Haram in the north-east of Nigeria and the worsening communal conflict in the Middle Belt were noted, it appeared that the southern states were less prone to that type of violence. 26.However, in its consideration of the relevant COI, namely the Country Information Report – Nigeria, 3 December 2020, by the Australian Department of Foreign Affairs and Trade (“DFAT”), the Board stated in paragraph 84 of the Board’s Decision that:-
27.In paragraph 85 of the Board’s Decision, the Board considered another piece of COI, namely the US Library of Congress Congressional Research Service Paper in 2018, which indicated, inter alia, that:-
28.In the same paragraph, the Board also referred to a BBC News report from 2018, which indicated that:-
29.Given the Board’s assessment that the applicant was at a real risk of harm from Boko Haram for reasons of his conversion to Christianity, and that COI indicated that the influence and attacks by Boko Haram were not strictly confined to areas outside the large urban cities in Nigeria, it may not be reasonable or rational for the Board to conclude that internal relocation to a large urban city such as Lagos could effectively assist the applicant to avoid harm from those he fears in the north-eastern part of the country, the Middle Belt and Niger Delta. 30.Similarly, for its determination of the viability of internal relocation for the applicant within Nigeria, it may not be reasonable for the Board to take into account the fact that “the applicant had previously lived and studied in Lagos and did not indicate he had faced any problems while living there, albeit some years ago.” (See paragraph 101 of the Board’s Decision). 31.From the background information of the applicant, which can be seen in paragraph 37 and 40 of the Board’s Decision, it seems that the applicant had lived and studied in Lagos from 2003 and returned to Borno state where he lived with his family in 2008 after he completed his education. The very long time lapse between the time the applicant lived in Lagos (from 2003 to 2008) and the time the Board made its Decision (in 2021) must not be overlooked, as the situation could have changed significantly for the applicant. 32.It is therefore this court’s view that the applicant’s challenge on the Board’s Decision regarding the viability of his internal relocation to avoid the real risk of harm from Boko Haram is arguable. 33.Moreover, this court also notes that despite the Board had correctly found that the applicant had failed to establish any Torture Risk[2] in both Nigeria and South Africa due to the lack of state acquiescence or involvement in his case, the Board’s conclusion regarding the applicant’s BOR 2 Risk[3] could be irrational and might be flawed. 34.The Board had explicitly accepted that the applicant had been harmed in the past by Boko Haram insurgents and accepted his account of the attack by Boko Haram in 2008 in his village when his father, uncle and sister were killed. Further, the Board also found from COI that deaths were common in attacks launched by Boko Haram. It seems to this court that it could be unreasonable or irrational for the Board to find that the applicant was not at a real risk of being arbitrarily deprived of his life. 35.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that there could be unreasonableness and/or irrationality in respect of the Board’s assessment of the viability of the applicant’s internal relocation within Nigeria. 36.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. 37.As it is this court’s view that there could be unreasonableness and/or irrationality in the Board’s Decision as aforesaid, the intended judicial review is reasonably arguable. Leave should therefore be granted to the applicant to apply for judicial review in respect of the Board’s Decision. Conclusion 38.For reasons aforesaid, leave is granted to the applicant to apply for judicial review in respect of the Board’s Decision. 39.The applicant is directed to issue an originating summons for the intended judicial review on or before 3 June 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court. Dated the 20th day of May 2026
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
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Cases cited in this judgment