Nwaorgu Chiemeziem Smart v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 988/2023

[2026] HKCFI 3089

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 988 of 2023

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 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 (Non-Refoulement Claims) Martin Wong:

1.  The Applicant’s Form 86 be amended to state the 2018 TCAB Decision as the decision in respect of which relief is sought, name the TCAB as the putative respondent and name the DOI as a putative interested party; and

2.  The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 21 June 2023 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision dated 10 August 2018 said to be made by the Director of Immigration (the “DOI”). He named the DOI as the proposed respondent and did not name any interested party.

2.From the case record, there was a decision by the Torture Claims Appeal Board (the “TCAB”) dated 10 August 2018 (the “2018 TCAB Decision”), which affirmed a decision by the DOI dated 23 June 2017 in refusing the Applicant’s non-refoulement protection claim made on the BOR 2 ground. There was a previous decision by the TCAB dated 21 April 2017 (the “2017 TCAB Decision”) wherein the TCAB affirmed another decision by the DOI dated 30 April 2015 in refusing the Applicant’s non-refoulement protection claim made on the other 3 applicable grounds under the USM.

3.I amended the Form 86 on my own motion to state the 2018 TCAB Decision as the decision in respect of which relief is sought, name the TCAB as the putative respondent and name the DOI as a putative interested party.

4.The Applicant did not request for a hearing and this application is to be dealt with on paper.

5.This application is plainly out of time and there is no application made for extension of time. For this reason alone, this application falls to be dismissed. That notwithstanding and insofar as necessary, I proceeded to consider the merits of the application as below.

Background

6.The Applicant is a national of Nigeria. He seeks non-refoulement protection on the basis that if he was returned, he would be killed by his mother, who was against his relationship with his former girlfriend for religious reasons and whom he suspected had killed his former girlfriend. His personal background, the relevant facts and relevant procedural history have been sufficiently set out in the 2017 TCAB Decision, which can be assessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

7.In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. This 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 TCAB (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anr (2007) 10 HKCFAR 676).

8.In the Form 86 and his affirmation filed in support of this application, the Applicant did not point to any particular error of law, procedural unfairness or irrationality of the 2018 TCAB Decision.

9.Looking at the 2018 TCAB Decision, the TCAB bore in mind the correct legal principles in respect of the BOR 2 ground [9-11], took into consideration the factual findings made in the 2017 TCAB Decision, which came to be made therein after taking into consideration the Applicant’s case and evidence, including the Applicant’s testimony at the hearings before the then TCAB (2017 TCAB Decision [13-16, 28-64]), before coming to find and conclude that BOR 2 risk was not made out [12-14].

10.I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

11.For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the application.

Dated the 5^th day of June 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

Form CALL-1