Olaniyi Olujide Samson v. Torture Claims Appeal Board
|
HCAL 1044/2021 [2026] HKCFI 5005 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1044 OF 2021 BETWEEN
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 23 July 2021, 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 9 July 2021 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:- 2.The Board found that the applicant’s claim for non-refoulement protection failed on the grounds of BOR 2 Risk[1], BOR 3 Risk[2] and Persecution Risk[3]under the Unified Screening Mechanism (“the USM”). Hence, the Board dismissed the applicant’s petition against the decision of the Director of Immigration (“the Director”) dated 27 June 2018, which rejected the applicant’s non-refoulement claim on the said grounds. 3.The applicant had previously made a torture claim and the claim was rejected by the Director on 18 October 2013. The applicant did not appeal against that decision. Hence, the applicant’s Torture Risk[4] had been finally determined, and it was not necessary for the Board to assess this risk again in the Board’s Decision. The applicant’s case 4.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. 5.In sum, the applicant claimed for non-refoulement protection because if refouled to Nigeria, he would be harmed or killed by the party members of the Nigeria Labor Congress (“NLC”) and Alliance for Democracy (“AD”), and that he was wanted by police for his involvement as a “tug” hired by NLC in a fight incident in August 2007. Oral hearing 6.This court fixed an oral hearing of the Leave Application on 27 August 2026 and the applicant was present at the hearing. 7.At the hearing, when this court asked the applicant for the grounds of his intended judicial review, he said that none of his risks was approved by the Board. The Board asked him for some evidence, but they were not available. Hence, the Board said that it was not sufficient. The applicant also said that most of the people he contacted were not available and hence the Board found his case not true. The applicant further said that his life was threatened and he was not able to go back to his own country. Grounds for judicial review 8.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). 9.The applicant did not advance any grounds for his intended judicial review in Form 86, nor in his affidavit dated 23 July 2021. 10.As aforementioned, the applicant only said at the oral hearing before this court that the Board asked him for evidence, but they were not available, and he added that his life was threatened and he was not able to go back to his own country. Discussion 11.First of all, the applicant’s danger and threats in his own country had been duly assessed but rejected by the Board. If he intends to challenge the Board’s finding of facts, it is not permissible in an application for judicial review. 12.Moreover, the applicant has the duty to substantiate his claims. He could not blame the Board for refusing his claim due to his inability to produce evidence. In fact, this court notes that the Board did not reject his claim because he was unable to submit evidence to prove his case. On the contrary, the Board assessed his claim based on the information he supplied, including that he had been a “tug” of NLC, that he was involved in a fight with members of AD, and that police were looking for him due to his involvement in the fight. 13.Thus, this court finds that none of the matters raised by the applicant at the oral hearing before this court constitutes a valid ground to challenge the Board’s Decision. 14.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). 15.Thus, this court will examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irrationality, despite the lack of any valid ground being advanced by the applicant for the intended judicial review. 16.In assessing the applicant’s petition, the Board held an oral hearing on 13 April 2021 and the applicant was present. Thus, the applicant was given the opportunity to present his case to the Board in person. 17.As can be seen from the Board’s Decision, the Board had duly considered the applicant’s claims, namely his risk of being harmed or killed by members of NLC and AD, and his risk of being arrested by the police. 18.The Board had laid out its questions on the applicant at the Board’s hearing and its evaluation of the applicant’s evidence in paragraphs 17 to 27 of the Board’s Decision, and it is not necessary to repeat the same here. 19.In gist, the Board found that even on the applicant’s own evidence, he was hired as a tug by NLC, and just like the members of AD, they were involved in illegal practice of trying to force potential voters to vote in their favour. The applicant was not injured in the fight with AD members. In this regard, he had never been tortured and no government officials had ever been involved in the dispute between the applicant and the members of AD. Even after the fight, tugs or members of both NLC and AD did not locate him. From August 2007 until he left Nigeria on 23 January 2008, the applicant stayed free and safe in Nigeria. 20.Further, on the applicant’s own admission, he, as a tug, was a wanted person by the Nigerian police. The Board found that in effect, the applicant was a fugitive trying to avoid arrest by the authorities in Nigeria. There was no obligation by the Hong Kong government to harbour fugitives. 21.Despite its findings as summarised above, the Board still assessed the availability of state protection to the applicant in view of his claimed risks from NLC and AD. The Board found that despite the existence of corruption in Nigeria, reforms had been and were on-going in Nigeria to curb the government’s corruptive practices and to improve its efficiency over the police administration. The Board thus found that reasonable state protection was available upon the applicant’s return to Nigeria (see paragraphs 30 to 32 of the Board’s Decision). 22.Further, the Board had given its full reasons in paragraphs 43 to 47 of the Board’s Decision for the finding that it was not unduly harsh for the applicant to relocate to other parts of Nigeria to make a living so as to avoid people from NLC and AD in his home village. 23.Thus, the Board found that the applicant’s application for non-refoulement protection failed on the grounds of BOR 2 Risk, BOR 3 Risk and Persecution Risk. 24.The assessment of evidence, COI and risk of harm was primarily within the realm of the Board. The Board was entitled to come to its own conclusion in dealing with the applicant’s petition. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion. 25.For the sake of completeness, this court noticed that the adjudicator, Mr Wesley Wong, signed the Board’s Decision as “Adjudicator of the Non-refoulement Claims Petition Office” instead of “Member of the Torture Claims Appeal Board”. This is not a correct description of his capacity, as he was not making the determination on behalf of the Non-refoulement Claims Petition Office. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the members of the Board and does not have the capacity to determine non-refoulement claims itself. 26.Under the USM, the Chief Executive has delegated his powers under Article 48(13) of the Basic Law to members of the Board to hear and determine petitions in relation to claims made on all applicable grounds other than Torture Risk (see paragraph 3.7 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme). Thus, only the members of the Board have the powers to hear and determine the applicant’s petition. 27.Nevertheless, the wrong description of his capacity does not nullify the Board’s Decision, as Mr Wesley Wong was indeed a member of the Board and did have the power to determine the applicant’s petition. 28.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. 29.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 applicant has failed to establish such a claim and hence leave must be refused. Conclusion 30.For reasons aforesaid, the Leave Application is dismissed. Dated the 2nd day of September 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 [1] Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [3] Risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. [4] Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115. |
Cases cited in this judgment