NZEKWABAM MICHAEL IFEANYI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1260/2020

[2025] HKCFI 3453

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1260 of 2020

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

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court.

1.   On the court’s own motion:-

a.   the name of the 1^st putative respondent be amended to Torture Claim Appeal Board / Non-refoulement Claims Petition Office;

b.   the Director of Immigration be named the 2^nd putative respondent.

2.   Extension of time to file the application for leave to apply for Judicial Review be refused; and

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 22 June 2020 (the “Form 86”), the Applicant sought leave to apply for judicial review (the “Leave Application”) against (i) the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (the “Board”) dated 13 July 2018 (the “Board’s Decision”); and (ii) the decision of the Director of Immigration dated 4 August 2017 (the “DOI Decision”)[1].

2.  To make sure that the parties are properly named, I make an order to amend the Form 86 on my motion.

3.  An oral hearing was requested by the Applicant. It took place before me on 21 July 2025 (the “Hearing”) and the Applicant attended in person.

Background

4.  The Applicant’s background, the basis and history of his claim and the arguments he advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision is included below[2] for reference. In short, the Applicant is a Nigerian citizen. He claims that he would be at the risk of serious harm or death if he were to return to Nigeria for a number of reasons:-

(1)   The Applicant refused to join a terrorist group called “Niger Delta Volunteer Force” (“NDPVF”).

(2)   He owed a debt of 700,000 Naira (approximately HK$35,000) to an individual called “James” (the “Creditor”) when the Applicant left Nigeria in 2008.

(3)   He was under threat from a relative called “Okeke” who was in a conflict with the Applicant’s family over ownership of certain pieces of land. Okeke is said to have murdered the Applicant’s parents by using “black magic” and “witchcraft” (which I understand to mean the use of poison).

(4)   He was allegedly targeted in a security operation of the Nigerian government called “Python Dance” due to his ethnicity.

The Leave Application is out of time

5.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the Applicant has to make the Leave Application within 3 months when the grounds for the Leave Application first arose, i.e. when the DOI Decision was made. Hence, the deadline for making the Leave Application is 14 November 2017. However, when the Form 86 was filed on 22 June 2020, it was over 2 years late. The delay is over 20 months even if one only looks at the Board’s Decision which was made on 13 July 2018.

6.  In AW v Director of Immigration and William Lam CACV 63/2015 (unreported, 3 November 2015), the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. 

7.  In the present case, a delay of no less than 20 months is serious and inordinate on any view. The Applicant has failed to provide any explanation in his Form 86 or his supporting affidavit despite having been expressly requested to do so in the Form 86. At the Hearing, the Applicant orally claimed that he was not aware of the procedures and only found out about the Board’s Decision from the Immigration Department and afterwards he wrote a letter to the Board for a copy of the Board’s Decision. I do not consider this explanation to be credible or satisfactory:-

(1)   According to the letter from the Board dated 13 July 2018 (to which the Board’s Decision was enclosed), the Board’s Decision was sent to the Applicant’s address in Chatham Road North (the “Address”) on 13 July 2018. Under s.37ZV of the Immigration Ordinance (Cap 115) applicable at the time, the Board’s Decision is deemed to be received by the Applicant on the second working day after it was posted. It is noted that the Applicant provided the same Address when he filed his Form 86 on 22 June 2020.

(2)   The Applicant has not provided any credible evidence in support of his claim (e.g. a copy of the alleged letter to the Board).

8.  Where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at 693B-C per Litton NPJ.  On account of the very serious delay and the lack of reasonable explanation put forward by the Applicant, I would dismiss the Leave Application.

9.  Notwithstanding the above, I shall consider the merits of the Leave Application for completeness.

Merits

10.  First, it is clear that the challenge against the DOI Decision is misconceived. The appeal to the Board is conducted by way of rehearing and the Board’s Decision effectively supersedes the DOI Decision, see: Re Moshsin Ali [2018] HKCA 549 at §45. Hence, the focus should be on the Board’s Decision.

11.  It is trite law that:-

(1)   Determination of the merits of a non-refoulement claim is essentially within the remit of the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them.  A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error.  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: see 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.]

(2)   An applicant, even if unrepresented, is required to properly identify the grounds of judicial review in the Form 86, and to fully and frankly disclose all material facts and potential legal answers, see: Ho Loy & Another v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) per Chow J. (as he was then) at §142.

12.  In the Form 86 and the accompanying supporting affidavit, the Applicant did not advance any specific grounds in support of the Leave Application.

13.  At the Hearing, the Applicant merely repeated his case that he was in fear of returning to his home country.

14.  Having examined the Board’s Decision, the papers and the evidence with anxious scrutiny, I take the view that the Board had correctly set out the law and key legal principles relating to all applicable grounds; the burden of proof and standard of proof; correctly identified the issues and observed a high standard of fairness:-

(1)   The Board was entitled to reject the Applicant’s factual account and find the risk of harm to be speculative, given that the lack of credible evidence in support of his claim (at §§45-52). I note that many of the alleged threats and incidents which were relied upon by the Applicant in fact took place many years ago.

(2)   Although not strictly necessary to do so, having regard to relevant Country of Origin information and the personal circumstances of the Applicant, the Board was plainly correct to find that in any event sufficient state protection and reasonable internal relocation alternatives were available to the Applicant (at §§53-54).

15.  Hence, I am not satisfied that the Board has erred in the enhanced Wednesbury sense. In essence, what the Applicant is seeking to do here is to repeat the arguments in support of his non-refoulement claim which have already been canvassed by the Board.

16.  The Applicant’s intended challenge of the Board’s Decision is in any event not reasonably arguable with any realistic prospects of success. 

Conclusion

17.  In the premises, I make an order that the Leave Application be dismissed as it was made out of time.

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