NNAEKPE EMMANUEL OKORO v. TORTURE CLAIMS APPEAL BOARD

HCAL 268/2021

[2026] HKCFI 872

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 268 OF 2021

  Application for Leave to Apply for Judicial Review

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

Following:

1.   Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 17 November 2020 be refused; and

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

Observations for the Applicant:

1.  The Applicant is a 39-year-old national of Nigeria who entered Hong Kong illegally on 10 March 2016 and was arrested by police on 29 March 2016. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to Nigeria he would be harmed or killed by the jihadist militant group Boko Haram for religious reason. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised as a Christian Igbo in Arochukwu, Abia State, Nigeria, and in 2006 he moved with his family to Barno State where he assisted in his family’s farming to support their family while his father was a colonel in the Nigerian army who had fought against the Boko Haram.

3.  In February 2016, his father was on leave from the army to visit the family, and one day while on his way home from shopping for grocery, the Applicant heard gun shots around his home, and out of fear he hid in the bushes and saw masked men with guns coming out, and after they were gone he ran inside his home to find the dead bodies of his parents and siblings believed to have been shot and killed by those masked men who had also left warnings on the wall that they were the Boko Haram and had killed his father and family in revenge.

4.  As a result, the Applicant became fearful for his life, and on the advice of his father’s friend who was a policeman in Lagos, he fled to Lagos, and later upon being informed by his father’s friend that the Boko Haram were coming to Lagos to look for him, the Applicant in late February 2016 departed Nigeria for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 20 July 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.  By a Notice of Decision dated 17 August 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his 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”).

6.  In his decision, the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that he will face any real and personal risk from the Boko Haram upon his return to Nigeria due to the absence of any past ill-treatment from them, that there are significant inconsistencies and discrepancies in his evidence that the credibility of his claim is found to be doubtful and unreliable, nor is there any reliable evidence that the Boko Haram were going to Lagos to go after him other than uncorroborated hearsays and his own speculations only, that in any event in the absence of any official involvement and with Boko Haram being branded a terrorist group by the Nigerian government that state or police protection would be available to the Applicant 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 190 million people spread across a vast territory of more than 923,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities in the southern parts of the country such as Ibadan or Lagos where it would be difficult if not impossible for any Boko Haram to locate him.

7.  On 30 August 2018, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 27 February 2019 before the Board during which he also made bare assertions of additional fears of harm from the Fulani herdsmen or of persecution for being an Igbo, and answered questions raised of his claim by the Adjudicator for the Board.  On 17 November 2020, his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision[1], the Board found material inconsistencies discrepancies and implausibility in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from the Boko Haram that caused him to flee from his country to come to Hong Kong to seek protection that it did not find him to be a credible witness or that his family was killed by the Boko Haram in 2016, nor is there any reliable evidence that the Boko Haram would pursue him all over Nigeria even if his account of events prior to his departure of Nigeria were true, and that relevant and reliable COI show that Boko Haram is largely confined to the north east of Nigeria primarily in Borno State that the Applicant can safely move to the south of the country such as Lagos where he had stayed before without incidents and where he will face extremely low level of risk of harm or violence from the Boko Haram, or for that matter the Fulani herdsmen or the Hausa people who are also confined to the northern states of the country, nor is there any evidence that he has ever faced any discrimination or persecution in the past as an Igbo who are according to the current COI able to freely participate in political social and cultural life and activities in Nigeria without fear or interference that his claim of being at risk as an Igbo is far-fetched and not supported by any reliable evidence that the Board concluded that his claim for non-refoulement protection failed on all applicable grounds.    

9.  On 2 March 2021, the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just asserted that he disagree with eth decision but without putting forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his application.      

10.  By then the Applicant was also out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

11.  As the last day of the three-month period for him to file his Form 86 fell on 17 February 2021, the Applicant was therefore some 13 days late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

12.  In the Applicant’s case, a delay of 13 days may not be considered as substantial or inordinate, for which he explained at the hearing of his application that he had changed his residential address at the relevant time and hence did not receive the decision in the mail until later when he made enquiry with the authority and was only then given a copy of the decision, but by then he was already out of time with his intended application

13.  The record shows that the decision was sent on the same day of 17 November 2020 to his then reported address without being returned through undelivered post, and in the absence of any documentary evidence to corroborate his bare assertions, while it is also his duty to keep the relevant authorities updated of any change of his residential or correspondence address, I am not satisfied that the Applicant has provided a good or valid reason or justification for his failure to file his application within the required period, but given the relative insubstantial delay, I propose to focus more on the merits of his intended application.      

14.  However, as noted above that the Applicant has failed to put forward any proper ground for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

15.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

16.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in  its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

17.  Furthermore, the fact is that it has also been correctly established by both the Director and the Board in their respective decisions that the risks of harm in the Applicant’s claim even if real are localized ones and that it is not unreasonable or unsafe for him to relocate to other parts of Nigeria, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

18.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

19.  For all these reasons, I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his delay, I refuse to extend time and accordingly dismiss his leave application.

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