OKEKE STANLEY CHIGBOGU AND ANOTHER v. DIRECTOR OF IMMIGRATION

HCAL 2084/2025

[2026] HKCFI 391

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2084 OF 2025

  Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

1.  Leave for the 1^st and 2^nd Applicants (“the Applicants”) to apply for Judicial Review be refused; and

2.  A Restricted Proceedings Order (RPO) be made against the Applicants.

Observations for the Applicants:

Introduction

1.  This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 1 September 2025 refusing to allow the Applicants, a father and his minor son, to make a subsequent claim for non-refoulement protection after their previous claims had been rejected by both the Director and the Torture Claims Appeal Board (“the Board”) under the Unified Screening Mechanism (“USM”) on all the applicable grounds.   

2.  The 1^st Applicant (“A1”) is a 52-year-old national of Nigeria who last arrived in Hong Kong on 23 October 2003 as a visitor and with permission to remain as such up to 13 November 2003 when he did not depart and instead overstayed, during which he met and formed a relationship with an Indonesian woman in Hong Kong, and was arrested by police almost 9 years later on 13 May 2012. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Nigeria he would be harmed or killed by other members of his family in Nigeria over some monetary dispute between them, and after his Indonesian girlfriend subsequently gave birth to their son, the 2^nd Applicant (“A2”) on 28 February 2013 in Hong Kong, A1 also raised a non-refoulement claim for A2 on the same basis of his own claim, whereupon their claims were assessed and determined jointly together under the USM.

Previous Non-Refoulement Claim

3.  By a Notice of Decision dated 11 August 2016 and a Notice of Further Decision dated 27 June 2017 the Director rejected the Applicants’ claims on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

4.  In his decisions the Director took into account of all the relevant circumstances of the Applicants’ claims and assessed the level of risk of harm from other members of A1’s family in Nigeria upon their return to Nigeria as low due to the absence of or low intensity and frequency of past ill-treatment from them, that A1’s problem with his family was a private monetary dispute between them only without any official involvement that state or police protection would be available to both Applicants if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Nigeria with a large population of 181 million people spread across a vast territory of more than 923,000 square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to safely move with A2 to other part of the country away from his home district in large cities such as Abuja where it would be difficult if not impossible for his family members to locate either of them.

5.  The Applicants’ appeal against the Director’s decisions was dismissed by the Board on 24 August 2018 after hearing A1 in evidence and submissions in 3 oral hearings and upon finding his claim of fear of harm from other members of his family in Nigeria not credible and which was further undermined by his failure to raise it upon first arriving in Hong Kong until almost 9 years later and only after his arrest by the police, while his new claim raised to the Board only during the appeal hearings of his fear of harm from the Nigerian authorities for his alleged activities in Hong Kong in the involvement of the IPOB Movement in Nigeria formed by the Igbo population in 2012 for the restoration of an independent state for the indigenous people of Biafra but which was outlawed by the Nigerian government was also found by the Board as not credible or reliable in the absence of any independently verifiable evidence or COI that his claims and those of A2 which essentially premised on A1’s case for non-refoulement protection in Hong Kong all failed on all the applicable grounds, and that the Board also confirmed the Director’s decisions.

6.  The Applicants’ application for leave to apply for judicial review of the Board’s decision was refused by this Court on 10 September 2021 upon finding none of the proposed grounds for their intended challenge reasonably arguable, that there was no error of law or procedural unfairness in their process before the Board or in its decision, and that there was no prospect of success in their intended application notwithstanding the fact that A2 was a minor at his then age of 8 years old and without legal representation in the proceedings when the bases of his claim premised on A1’s claims which had all been rejected as not credible were also separately determined by the Board and correctly found to be without merits (HCAL 2208/2018 [2021] HKCFI 2730).

7.  The Applicants’ subsequent appeal against the Court’s decision was then dismissed by the Court of Appeal on 21 February 2024 upon finding no merits in their appeal and upon agreeing with the Court’s decision as regard A2 being a minor without legal representation of no material that might give rise to any concern that there might be non-refoulement grounds relating specifically to him that had not been advanced to or considered by the Board due to his lack of legal representation before the Board (CACV 443/2021 [2024] HKCA 163) .

8.  The Applicant’s Notice of Motion for leave to appeal against the Court of Appeal’s decisions was also dismissed by the Court of Appeal on 12 April 2024 ([2024] HKCA 305), and then by the Appeal Committee of the Court of Final Appeal on 5 December 2024 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A.

Request To Make Subsequent Claim

9.  Just one week after the Court of Final Appeal’s dismissal that the Applicants on 12 December 2024 in writing to the Immigration Department requested to make a subsequent claim on the basis that there have been increasing violence against the IPOB members in Nigeria including by the authorities that the Applicants still fear of being harmed and killed if refouled to Nigeria.     

10.  There are however constraints on a claimant who has previously made a non-refoulement claim to make a subsequent claim, as stipulated by Section 37ZO of the Immigration Ordinance as follows:

“(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that –

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3) In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.

(4) If an immigration officer decides that a person may make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision.

(5) If an immigration officer decides that a person may not make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision, and the notice must also include the reasons for the decision.”

11.  Accordingly, the Director required the Applicants to provide further information and evidence in writing in support of their request within 14 days, which they subsequently did via their lawyer from Duty Lawyer Service (“DLS”) by way of 2 statements by A1 with supporting documents including news articles and relevant COI but of essentially the same claims as before of fear of harm from his family members as well as the Nigerian authorities over his alleged involvements in the IPOB Movement while in Hong Kong and his concern for the safety of A2 as a minor who has never resided in Nigeria.     

12.  By a Notice of Decision dated 1 September 2025, the Director refused to allow the Applicants to make a subsequent claim upon finding that the bases thereof were essentially the same as that of their previous claims, and that they failed to provide any or sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since their previous claims were determined, or that those changes when taken together with the material previously submitted in support of their previous claims would give their subsequent claims any realistic prospect of success given the correct and unchallenged rejection of their claims by the Board as not credible or reliable.

13.  On 15 September 2025, the Applicants filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, but no ground for seeking relief was given in their Form or in A1’s supporting affirmation of the same date in which he just stated that he is not satisfied with the decision but without putting forth any proper ground for their intended challenge of the Director’s decision, nor were they able to do so at the hearing of their application.                       

14.  In the premises and having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in the decision or any failure to apply high standards of fairness in the consideration and assessment of the Applicants’ request to make a subsequent claim, and as I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review upon being satisfied that A2 who is still a minor at his present age of 12 years old did have legal representation from DLS for his request to make a subsequent claim, and for that matter so did A1, I therefore refuse to grant leave and accordingly dismiss their leave application.

Restricted Proceedings Order

15.  Given the facts that the non-refoulement claims of both A1 and A2 have already been finally and conclusively determined in the previous proceedings, ending with the order of the Appeal Committee of the Court of Final Appeal dated 5 December 2024, but that the Applicants are still trying to re-litigate their cases by making this subsequent claim based on essentially the same facts and basis as before or invalid basis, I shall next consider whether it would be appropriate to make a Restricted Proceedings Order (“RPO”) against them.

16.  Section 27 of the High Court Ordinance, Cap 4 provides as follows:

“Restriction of vexatious legal proceedings

(1) The Court of First Instance may, on the application of the Secretary for Justice or an affected person, make an order that –

(a) no legal proceedings shall without the leave of the Court of First Instance be instituted by the person against whom the order is made; and

(b) any legal proceedings instituted by that person in any court before the making of the order shall not be continued by him without the leave of the Court of First Instance.

(2) The Court of First Instance may not make an order under subsection (1) unless –

(a) it is satisfied that the person against whom the order is to be made has habitually and persistently and without any reasonable ground instituted vexatious legal proceedings, whether in the High Court or in any inferior court, and whether against the same person or against different persons; and

(b) it has heard the person against whom the order is to be made or given him an opportunity of being heard.

(3) An order made under subsection (1) –

(a) may be made on such terms and conditions as the Court of First Instance thinks just; and

(b) may provide that it is to cease to have effect at the end of a specified period, but shall otherwise remain in force indefinitely.

…”

17.  Relevantly, Section 27A also provides:

“(1)  Leave for the institution or continuance of any legal proceedings by a person who is the subject of an order for the time being in force under section 2791) shall not be given unless the Court of First Instance is satisfied that –

(a)  the proceedings are not an abuse of the process of the court in question; and

(b)  there are reasonable grounds for the proceedings.

(2)  No appeal lies from a decision of the Court of First Instance granting or refusing leave required under this section, unless leave to appeal has been granted by the Court of First Instance.”

18.  In Etik Iswanti v Torture Claims Appeal Board [2021] HKCFI 1589, Chow JA (sitting as an additional judge of the Court of First Instance) examined the relevant principles for making an order under Section 27 against a non-refoulement claimant to prevent him or her from commencing vexatious legal proceedings which sought to re-open a non-refoulement claim which had already been finally and conclusively determined in previous proceedings, and held that repeated actions evidencing a calculated attempt by a claimant to delay an inevitable judgment or its execution or a refusal to accept the unfavourable final result of a litigation or seeking to re-open matters already determined in a previous action may be regarded as vexatious legal proceedings which would justify a RPO being made under the section.  

19.  His Lordship in the subsequent case of Re Wahyuni v Director of Immigration [2021] HKCFI 1991 (again sitting as an additional judge of the Court of First Instance) went on to hold that apart from Section 27 of the High Court Ordinance, the Court has an inherent jurisdiction which it can exercise on its own motion to make a RPO to prevent similar abuses of the court’s process by non-refoulement claimants, as the underlying purpose of the court’s jurisdiction to make a RPO is the prevention of abuse of process ([9] – [10]).

20.  In the subsequent jointly heard appeals of Siti Khotimah v Director of Immigration, CACV 420/2021 and Reza Sahin v Director of Immigration, CACV 422/2021 ([2022] HKCA 327, 28 February 2022), Poon CJHC in giving judgment of the Court of Appeal also held that where a judge of the Court of First Instance (“CFI judge”) makes a RPO, he may where appropriate properly exercise his power under the Court’s inherent jurisdiction to also make a restrictive order against vexatious appeals under which the non-refoulement claimant concerned cannot appeal without first obtaining leave from him or another CFI judge designated by the Chief Judge of the High Court upon observing procedural fairness by putting the non-refoulement claimant concerned on notice and giving him or her the opportunity to address the court before making the restrictive order ([38] – [40]).           

21.  In the present case, it is clear from the above that the Applicants’ conduct in seeking persistently to re-litigate their non-refoulement claims without viable grounds amounts to an abuse of process, and that unless a RPO is made against both of them, to which they were unable to answer or raise any valid objection at the hearing, I am convinced that the Applicants will likely continue to do so and/or to make vexatious appeals, thereby wasting further precious time and resources of the Judiciary.

22.  Accordingly, I make the following order:

(1)  The Applicants be prohibited from commencing any fresh proceedings by whatever originating process, or continuing any existing legal proceedings, relating to or touching upon or leading to any non-refoulement claim of either Applicants in the High Court, or any appeal, including this Order, without the leave of a Judge of the Court of First Instance;

(2)  All applications for leave under paragraph (1) shall be made to the Judge in charge of the Constitutional and Administrative Law List or such other Judge as may be designated by the Chief Judge of the High Court to hear cases in the Constitutional and Administrative Law List;

(3)  At least 7 days before filing any application by the Applicants or either A1 or A2 for leave under paragraph (1), that they or either of them do notify in writing each intended defendant or respondent of his intention to make such application, enclosing a copy of the draft document by which the fresh proceedings are intended to be commenced, and if any response is received by the Applicants or either of them from any such intended defendant or respondent, that they or either of them do file a copy of each such response together with his said application for leave;

(4)  Any intended defendant or respondent having notice of such intended proceedings be entitled but under no obligation to place before the court written representations regarding the same;

(5)  All applications made pursuant to this order and all ancillary matters be dealt with by the court on paper and without any oral hearing unless the designated Judge should otherwise direct;

(6)  If the Applicants or either of them should issue fresh proceedings falling or which may fall within the terms of paragraph (1) without first seeking the court’s leave, and if such fact should come to the notice of the Registrar of the High Court or any Master or Judge, such fresh proceedings be referred to this Court or the designated Judge for a decision as to whether they or either of them should be permitted to continue or should be dismissed;

(7)  Notice of each decision by the designated Judge made pursuant to this Order be given in writing to the Applicants or either of them and to each intended defendant or respondent named in the fresh proceedings;

(8)  Whether or not any fresh proceedings are brought to the notice of the designated Judge, if a defendant or respondent is served with such proceedings without the relevant documents being accompanied by either an order granting leave to commence such proceedings or a direction that leave to commence such proceedings is not required, such defendant or respondent be entitled to make no response to such service pending notification of the court’s decision in relation to those proceedings; and that time for acknowledging service or for otherwise responding to such proceedings be deemed extended accordingly;

(9)  No more than one leave application under paragraph (1) may be made by the Applicants within any period of 3 months;

(10)  No appeal shall lie from a decision of the Judge granting or refusing leave under this Order, unless leave to appeal has been granted by the Judge;

(11)  This order shall cease to have effect at the end of 5 years from the date of this Order; and

(12)  A copy of this Order shall be sent to the Registrar of the High Court.

Disposition 

23.  The Applicants’ application for leave to apply for judicial review is dismissed.

24.  A RPO in terms of paragraph 22 be made against both Applicants.  

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