Onyeanisi Okechukwu Louis v. Torture Claims Appeal Board
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CACV 388/2026, [2026] HKCA 1725 On Appeal From [2026] HKCFI 1896 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 388 OF 2026 (ON APPEAL FROM HCAL NO. 1164 OF 2021) ____________________ BETWEEN
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________________ JUDGMENT ________________ Hon Anthony Chan JA (giving the Judgment of the Court) : Introduction 1.This is the Applicant’s appeal against the order of Deputy High Court Judge Michael Wong (“Judge”) dated 1 April 2026 (“Order”) refusing to grant him leave to apply for judicial review. The intended judicial review was in respect of the decision of the Torture Claims Appeal Board (“Board”) dated 26 May 2021 (“Board’s Decision”), which confirmed the decision of the Director of Immigration (“Director”) dated 8 June 2020 rejecting the Applicant’s non-refoulement claim. Background 2.The Applicant is a national of Nigeria. On 25 July 2019, the Applicant raised his non-refoulement claim on the basis that, if refouled, he would be harmed by the police or the soldiers for having witnessed the killing of a friend by one of the soldiers who assaulted him. The Applicant’s claim was rejected by the Director on 8 June 2020, and his appeal against the Director’s decision was rejected by the Board on 26 May 2021. Details of the Applicant’s claim and the Board’s reasons for rejecting his appeal can be found in the Board’s Decision, the hyperlink to which can be found in the Form CALL-1 dated 1 April 2026, [2]. 3.The Applicant’s leave application was refused by the Judge on 1 April 2026. Details of the Judge’s reasons for refusing to grant leave can be found in the Form CALL-1. Grounds of Appeal 4.In this appeal, the Applicant is represented by Mr Fournier. Helpfully, Mr Fournier has consolidated the 9 grounds of appeal set out in the Applicant’s Notice of Appeal filed on 14 April 2026 into 4 principal grounds (“Grounds (1) to (4)”), namely :
5.Each of the Grounds was elaborated upon in Mr Fournier’s skeleton arguments, and he also made viva voce submissions on his main arguments. Applicable Principles 6.In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if the appeal was a fresh application for judicial review: see Nupur Mst v Director of Immigration [2018] HKCA 524, at [14(6)]. 7.The assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Director and the Board. The 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 Board: Re Kartini [2019] HKCA 1022, [13(1)]. Ground (1) 8.Two points are made under this Ground. Firstly, it is contended that the Judge erred in law by applying an unduly stringent test at the leave stage by conducting a full merits review rather than asking whether the Applicant’s case was reasonably arguable. 9.We are unable to agree with the criticism. The Judge was plainly aware of the threshold test for the leave application[1]. The Applicant had failed to appear at the hearing below despite his request for an oral hearing[2]. In accordance with Re Abdus Salam [2019] HKCA 1091, [22], the Judge treated the Applicant’s absence as a withdrawal of his request for an oral hearing and proceeded to determine the merits of the application before him based on the materials before the court[3]. Thus, properly understood, the Judge had made no legal error as suggested. 10.Secondly, it is contended that the Judge had erred in treating the lack of particularisation in the Applicant’s affidavit (in which the grounds for the leave application were contained) as determinative against granting leave. Mr Fournier refers to Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 and submits that it supports a substance-over-form approach at the leave stage such that deficiencies in particularisation by an unrepresented applicant should not be treated as fatal where the substance of the claim is discernible. It is also submitted that deficiencies in particularisation are capable of being cured at a substantive hearing. 11.We are surprised by the submissions because the Judge did not treat the lack of particularisation of the grounds for judicial review as fatal, and he was careful in considering the merits of the application before the court. In his leave application, the Applicant advanced 3 wholly unparticularised grounds, ie, he disagreed with the Director on the issues of credibility and state protection, and alleged that the Director was wrong in law and on fact in relying on internal relocation. The Judge was plainly right that: (a) such grounds could only be taken as general accusations that the Director erred in his findings on the Applicant’s credibility, the availability of state protection and the viability of internal relocation for the Applicant[4]; and (b) none of these accusations could constitute a valid ground to challenge the Board’s Decision[5]. 12.With respect, Mr Fournier has not identified what discernible substance there was in the Applicant’s claim which was overlooked by the Judge. We do not agree with the blanket proposition that deficiencies in particularisation are capable of being cured at a substantive hearing. It tends to blur the distinction between a leave application and the substantive hearing, and may render the former superfluous. Proper particulars are required to direct the mind of the court to the alleged deficiencies, without which the court can do no better than examining the decision of the Board to ensure that it complies with the law. 13.There is no merit in this Ground. Ground (2) 14.It is submitted by Mr Fournier that “[w]hile the Judge stated that anxious scrutiny had been applied, the reasoning demonstrates a largely deferential acceptance of the Board’s findings without genuine engagement with the substance of the Applicant’s challenges. The reasoning fell short of the rigorous, independent assessment required in cases of this nature”. 15.With respect, this is a serious allegation which we have no hesitation in rejecting as baseless. The submissions fail to recognise that the role of the court in judicial review is not to re-assess the Applicant’s non-refoulement claim afresh. The primary decision-makers (and fact-finders) are the Director and the Board. The court’s role is to scrutinize the Board’s Decision to ensure that it is free from errors of law, procedural unfairness or irrationality[6]. 16.Despite the lack of any valid ground of challenge against the Board’s Decision, the Judge had discharged his duties in scrutinizing the Board’s Decision for errors which might justify the intervention of the court[7]. There is no substance in this Ground. Ground (3) 17.Mr Fournier argues that properly analysed, the Applicant’s complaints (see para 11 above) raised arguable issues of law and mixed fact and law. 18.To begin with, it is trite that findings on the Applicant’s credibility are matters for the Director and the Board. The Judge was satisfied that the Board’s Decision was free from legal errors, procedural unfairness or irrationality[8]. There was no reason to interfere with the same. Secondly, we are unable to see any real point of law raised by the Applicant in his leave application. 19.Thirdly, it is submitted that the Board’s findings on availability of state protection and viability of internal relocation are flawed because of the involvement of state agents (police and soldiers). The Board was fully aware of the involvement of some policemen and soldiers and held that: “the mere fact that the perpetrators of the threats and assaults were soldiers and police officers did not per se make them state actors. Isolated instances of abuse by a few soldiers or a few police officers (as opposed to a practice or pattern of abuse) do not amount to ill-treatment for which the state is responsible”[9]. Such assessment was within the province of the Board, and we are unable to see any ground to intervene by way of judicial review. 20.We see no merit in this Ground. Ground (4) 21.We are perplexed by this Ground. The Judge referred to Re Abdus Salam and proceeded to consider the merits of the Applicant’s case. However, it is said that the Judge relied on the absence of the Applicant to draw adverse conclusions about the Applicant’s “failure to elaborate his case”. Yet, Mr Fournier has not identified what “adverse conclusions” were drawn by the Judge. 22.We see no justification for the criticism. The only relevant reference made by the Judge of the Applicant’s absence was that there was no elaboration of his grounds at all due to his absence at the hearing[10]. It was a matter of fact, and we see no “adverse conclusions” drawn by the Judge. Indeed, the Judge went on to consider carefully the merits of the application before him. 23.This Ground must be rejected. Disposition 24.For the above reasons, none of the Grounds of Appeal is made out. This appeal is accordingly dismissed with no order as to costs.
Mr Knut Fournier, instructed by Mohnani & Associates, for the Applicant The Putative Interested Party, represented by the Department of Justice, was excused from attendance [1] Form CALL-1, [30]. [2] Form CALL-1, [9]. [3] Form CALL-1, [10]-[11]. [4] Form CALL-1, [14]. [5] Form CALL-1, [15]-[16]. [6] Form CALL-1, [17] and para 6 above. [7] Form CALL-1, [18]. [8] Form CALL-1, [29]. [9] Board’s Decision, [104]. [10] Form CALL-1, [14]. |
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