UJAH IKECHUKWU HILARY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2184/2020

[2025] HKCFI 5888

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2184 of 2020

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 the Applicant being absent in open court;

1.  The Form 86 be amended on the court’s own motion.

2.  There shall be no extension of time to the applicant to file the Form 86 out of time.

3.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 30 October 2020, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 31 July 2017 (“Board’s Decision”) dismissing the applicant's appeal against 2 decisions of the Director of Immigration (“Director”) respectively dated 6 June 2016 and 20 April 2017 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL002184_2020_files/the_Board's_Decision.pdf

2.  In the Form 86, the applicant named the Board and the Director as the proposed respondents. As the Board should have been the proper respondent, the Form 86 shall be amended on the court’s own motion.

3.  The basis of the applicant’s claim was that, if refouled to Nigeria, he would be harmed or killed by his uncle due to a land dispute. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

4.  Pursuant to the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 13 November 2025. A notice of hearing with a reminder[1] of the consequence of absence dated 16 October 2025 was sent to the applicant’s last known address by ordinary post. The applicant did not turn up at the hearing. Before the hearing and on the day of the hearing, several phone calls were made to the applicant’s given telephone number but to no avail. The information before this court shows that the said notice of hearing has not been returned undelivered through the post.

5.  In the circumstances, this court will dispose of the Leave Application according to the materials already placed before the court.

Discussion

6.  The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[2] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

7.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[3], and further to make full and frank disclosure of all material facts to be verified by an affidavit. No such grounds have been provided by the applicant in either his Form 86 or the supporting affirmation.

8.  As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[4] In the present case, the Board found that the applicant was not a credible or truthful witness. Whilst the Board accepted that there might have been a land dispute between the applicant’s father and the uncle, the Board however found that the applicant had fabricated and concocted the majority of the evidence. The Board found that the applicant and his family had not been harmed by his uncle in Nigeria in the past. Thus, the Board concluded that there was no real risk of harm if the applicant were refouled. The Board also found that state protection and internal relocation would be viable. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

9.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. The applicant advanced no grounds at all in support of the Leave Application. Hence, the applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[5].

Whether to grant extension of time

10.  More importantly, there is a substantial delay in the Leave Application. Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date when the Board’s Decision was delivered. This application is late for about 3 years, which is substantial.

11.  Before considering whether I should exercise my discretion for an extension of time, I should have regard to, among others, (i) the length of the delay; (ii) the reason for the delay; and (iii) the prospect of success of the intended challenge. The present delay is significant and inordinate. Very good reason is required to explain for the delay.

12.  The applicant provided no explanation at all for the delay. In view of the lengthy delay, the absence of any explanation for the delay, and importantly, the lack of merits, I refuse to exercise my discretion to grant an extension of time.

Order

13.  The Form 86 be amended on the court’s own motion.

14.  There shall be no extension of time to the applicant to file the Form 86 out of time.

15.  The applicant’s 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