IFEANYI JOHN DIKEMENYI alias ADJEI JOHN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.  The Form 86 is amended on the Court’s own motion by substituting “/Non-Refoulement Claims Petition Office” in place of “WANCHAI”; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  The Applicant is a citizen of both Nigeria and Ghana. By a Form 86 filed on 3 July 2020 (“Form 86”), which was accompanied by a supporting Affirmation also filed on 3 July 2020 (“the Affirmation”), the Applicant sought leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) made on 25 November 2016 (“the TCAB Decision”)[1] which was exhibited to the Affirmation.  I will use the abbreviations and definitions from the TCAB Decision unless otherwise specified herein.  

2.  At the oral hearing of his application on 27 August 2025 the Applicant made some submissions, which I outline below, in relation to the issue of delay.

3.  I have amended the Form 86 of my own motion to reflect the identity of the proper Putative Respondent.

Background

4.  This is set out in the TCAB Decision.  While I will not repeat the contents thereof, in summary and in relation to the assessment of his claim:

(1)  The Applicant claimed non-refoulement relief on the basis that if he were refouled to Nigeria he would be killed by his paternal uncles, and that if he were refouled to Ghana he would be harmed by his mother’s family;

(2)  The claim was assessed on the grounds of Torture Risk[2], BOR 3 Risk[3], and Persecution Risk[4] and was rejected by the Director of Immigration (“Director”) in a decision dated 14 November 2014 (“Director’s Decision”);

(3)  The Applicant appealed/petitioned to the TCAB/NRCPO and in his Notice of Appeal/Petition stated that his address was RM F, 2/Fl, No. 18 Wing Ning Lane, Wang Toi Shan, Pat Heung (“Wing Ning Lane Address”);

(4)  The TCAB/NRCPO held a hearing in relation to the Applicant’s non‑refoulement claim on 6 May 2016; and

(5)  The TCAB/NRCPO issued the TCAB Decision dated 25 November 2016, in which it dismissed the Applicant’s appeal/petition, and confirmed the Director’s Decision.

5.  Further, and while such do not appear to be the subject of any application before me:

(1)  The Director by a letter dated 4 January 2017 invited the Applicant to submit additional facts relating to an assessment of BOR 2 Risk[5];

(2)  On 17 January 2017 the Director received a letter dated 16 January 2017 from the Applicant containing some submissions.  These were considered by the Director who found in a decision dated 20 January 2017 (“the Director’s Further Decision”) and sent to the Applicant at the Wing Ning Lane Address that the Applicant had failed to establish BOR 2 Risk in relation to his non‑refoulement claim; and

(3)  The Applicant does not appear to have taken any steps in relation to the Director’s Further Decision, and indeed did not refer to such either on the papers or at the oral hearing of his application.

Legal Principles

6.  An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep.  HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

7.  It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers.  The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them.  While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, 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 TCAB/NRCPO.  (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

8.  In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676).  As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

9.  Given RHC O. 53 r. 4(1) and s. 21K(6) High Court Ordinance (CAP. 4A),where an Applicant applies for leave to apply for judicial review more than 3 months after the decision:

(1)  The failure to apply within 3 months constitutes “undue delay”.  To justify an extension of time in which to apply for leave, the Applicant must show “good reason” to extend time.  In deciding this, certain factors that are likely to be significant are (i) the length of the delay (ii) the explanation for the delay[6] (iii) the merits of the substantive application[7] (iv) prejudice, and (v) whether the application raises questions of general public importance;

(2)  Where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review.  The refusal of an extension of time is part and parcel of a refusal to grant leave to apply.  It is not the case that the court refuses the extension of time as a discrete decision and then makes no decision on the question of leave to apply for judicial review, treating this as a separate matter entirely;

(3)  If the court is satisfied that there is good reason for extending the period, it does not follow that leave to apply for judicial review will automatically be given.  While the court might grant leave, it retains a discretion to refuse to do so and the existence of a good reason for undue delay is only one facet of the question, others including sufficiency of interest and the need to satisfy the arguability test.  Leave may also be refused on the basis that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration; and

(4)  Even if leave to apply is granted, the issue of undue delay on the part of the applicant may be raised again at the substantive hearing of the judicial review application.  That is a separate consideration of whether relief should be refused on the basis that the court thinks that relief would be likely to cause substantial hardship or prejudice to the rights of another or be detrimental to good administration.  

See AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) (at §§23 to 36), Thomas Lai [2014] 6 HKC 1 (at §§43 to 45 as also cited in AW, supra), and H v Director of Immigration (2020) 23 HKCFAR 248 at §§17-22, 36-44 citing inter alia both AW and Thomas Lai.  See also Re Hariatiningsih [2021] HKCFI 1194 at §§12-13, 16-19 citing the aforesaid, upheld in [2022] HKCA 1321.

Discussion

10.  The application was filed more than 3 months after the NRCPO Decision, and more than 40 months out of time.  I do not see any good reason to extend time for the Applicant’s application for leave to apply for judicial review.  I therefore refuse to grant such an extension of time, and I dismiss the application for leave to apply for judicial review.  This is for the following reasons.

11.  Dealing, firstly, with the merits of his application, the Applicant has not identified or set out any grounds of judicial review in the Form 86 or in the Affirmation.  There is hence no allegation of any procedural unfairness in relation to, and/or of any error of law in, and/or any irrationality/failure to meet the enhanced Wednesbury test in, the NRCPO Decision.  

12.  Nevertheless, given the seriousness of the issues at hand, I have in relation to the question of merits of the substantive application considered the NRCPO Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.  

13.  The TCAB/NRCPO set out the Applicant’s background, immigration and procedural history, the nature of the hearing, and the documents including COI considered (Paragraphs 1 to 20).  It then moved on to the relevant law and principles in relation to the three types of risk before it (Paragraphs 21 to 31) before it detailed the Applicant’s claims and the events that took place at the hearing (Paragraphs 32 to 52).

14.  The TCAB/NRCPO then assessed the Applicant’s claims and the evidence.  It considered the evidence and COI before it, and in relation to the Applicant’s credibility concluded that he was not a reliable witness and was somebody prepared to fabricate evidence if he thought it suited his purpose.  It gave salient reasons for such conclusions (Paragraphs 53 to 65). As for the non-refoulement claim against Nigeria, on the basis of the evidence the decision-maker found that it was satisfied that the risk that the Applicant’s paternal uncles would seek to harm him was “remote and negligible”, rejected the Applicant’s claims of primary fact about the (allegedly caste-related) incident that had caused him to leave Lagos (where the Applicant had lived and worked for 3 years without incident) for Hong Kong, and found that the Applicant could safely and reasonably live and work in Lagos.  The TCAB/NRCPO also found that there was no plausible evidence that the Applicant would be harmed if he were returned to Ghana, and that it would be reasonable for him to live and work in a city such as Acera.  Again, salient reasons were given for all of these conclusions (Paragraphs 66 to 87).

15.  The decision-maker hence found that the Applicant had failed to show he faced a real risk or chance of harm sufficient to warrant non-refoulement protection either in Nigeria or Ghana, and that he had failed to establish he would be subject to Torture Risk or BOR 3 Risk if refouled to either, or Persecution Risk.  It therefore dismissed the appeal/petition, and confirmed the Director’s Decision (Paragraphs 88 to 93).

16.  I do not, from my examination and scrutiny, see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the TCAB Decision, and that justifies the grant of leave.  This is especially so as to the assessment, reasoning, and findings regarding credibility, evidence, risk of harm, and internal relocation which are matters primarily within the province of the decision-making body.  Nor is there any public law basis to vitiate the decision-maker’s conclusions regarding Torture Risk, Persecution Risk, and BOR 3 Risk.

17.  I am therefore not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

18.  Secondly, there is clearly significant undue delay in this case as the leave application was filed over 40 months out of time.  Despite this, there was no request for an extension of time to make the application in the Form 86, and no explanation was given in the Affirmation for the undue delay, notwithstanding the Applicant’s duty of full and frank disclosure as mentioned above.

19.  At the oral hearing of his application, the Applicant merely said he could not remember all the reasons for the delay and claimed that he responded when he “got the letter”, which he believed had happened in June or July 2020 as he said he would not normally delay things and would respond to things fast or immediately.  While he initially said that at the time he was living in Yuen Long, rather than at the Wing Ning Address, he then claimed that it had been a long time, so he did not remember at which address he had received the TCAB Decision.  He also claimed (without any documentary proof) that he had moved away from the Wing Ning Lane Address in 2020 during the COVID-19 epidemic.  When I asked him if he had updated the TCAB/NRCPO with his changed address, he merely said that he had updated the Director with his changed address.

20.  I do not see that I have been given an acceptable or credibly valid explanation for the significant delay.  As I have mentioned, the Director’s Further Decision was sent to the Applicant at the Wing Ning Lane Address, which was the Applicant’s address as provided in his Notice of Appeal/Petition against the Director’s Decision, and hence which would in all likelihood have been the address to which the Director’s initial letter of 4 January 2017 (inviting the Applicant to submit additional facts as to BOR 2 Risk) would have been sent.  I have not been referred to, and do not see, any credible documentary evidence which supports the claim that the TCAB Decision was only received by the Applicant by post sometime in 2020 (and hence over 4 years after its date), which claim is obviously inherently improbable.  Nor has the Applicant suggested that the Director’s letter of 4 January 2017 (which he had clearly received and responded to), and/or the Director’s Further Decision are relevant to the issue of delay.

21.  Moreover, it was the Applicant’s obligation to provide an effective address for service in relation to correspondence or notices of the TCAB/NRCPO, since as far as the latter was concerned, the address it was given was the Applicant’s designated means of contact.  If there was any delay occasioned by the subsequent ineffectiveness of the Wing Ning Address, such falls on his shoulders (s. 37ZA Immigration Ordinance (CAP. 115); Hasmi Rizwan Imran [2018] HKCFI at §§6, 8; HKCA 439 at §§8(a), 10(d), 14-15).

22.  Thirdly, I do not see any question of general public importance raised by the application which is likely to be resolved by the courts in any event.  Given the lack of any reasonably arguable grounds, I also see no prejudice to the Applicant if the application were not allowed to proceed, whereas allowing it to proceed would clearly be to the detriment of public administration and would needlessly prejudice the putative Respondent.  Indeed, even if there were an acceptable explanation for the delay, given the other matters herein I would still refuse to grant leave.

Conclusion

23.  In the circumstances, I have made the orders above, including that the application for leave to apply for judicial review be dismissed.

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