ONYEKA JACOB ONUORA v. TORTURE CLAIMS APPEAL BOARD

HCAL 2461/2020

[2025] HKCFI 1834

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2461 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 oral submissions by the Applicant in open court;

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 29 July 2019 be refused; and

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

Observations for the Applicant:

1.  The Applicant is a 52-year-old national of Nigeria who arrived in Hong Kong on 17 August 2005 as a visitor with permission to remain as such up to 6 September 2005 when he did not depart and instead overstayed, and was arrested by police some 2 ½ years later on 1 April 2008. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Nigeria he would be harmed or killed by his father and/or other Muslims including Islamic extremists and terrorist groups such as Boko Haram, Fulani herdsmen, and Movement for the Emancipation of the Niger Delta (“MEND”) due to his Christian religion, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Kano, Nigeria to a Muslim father and a Christian mother, but the Applicant and his siblings were all influenced by their mother to also become Christians, much to the displease of their father who often demanded the Applicant and his siblings to convert into Muslims, and threatened to kill them if they refused to do so, which had led to frequent conflicts within the family.

3.  On one occasion in 1996 or 1997 when his Muslim father and uncles again tried to force the Applicant to convert his religion to Islam, and when he refused, they attacked him with wooden sticks and knives that the Applicant suffered cuts and bruises all over his body, and that it was only after his neighbors had called the police that his father and uncles stopped and left, but the incident eventually led to his parents’ divorce, whereupon his father left the family and was never seen again by the Applicant.

4.  After leaving school the Applicant conducted his own trading business, married his wife who was also a Christian, and continued to attend church on Sundays and other religious occasions in his home district.

5.  As the majority of the residents in his home district were Muslims, the Applicant also witnessed many incidents of their discriminations and hostilities against the minority Christians, including mass attacks by Muslim gangs and Islamic extremists and terrorist groups such as Boko Haram, Fulani herdsmen, and MEND that led to multiple injuries and fatalities amongst the Christians, and with their houses and properties also burnt down, although the Applicant himself never experienced such actual attacks on himself.

6.  However, one day in late 2002 his wife was caught in the middle of such a massacre by the Muslim gangs and was amongst the fatalities, and after another mass attack by the Muslim gangs in his home district in Kano against Christians in April 2005 which led to massive injuries and fatalities, the Applicant fled to Lagos, and on 16 August 2005 he departed Nigeria for Hong Kong where he overstayed, and upon his subsequent arrest by the police he raised his torture claim, and after it was rejected by the Immigration Department he then sought non-refoulement protection on the same basis, for which he completed a Supplementary Claim Form (“SCF”) on 18 July 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 21 August 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his father and uncles or the Muslim extremists and terrorist groups upon his return to Nigeria as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of his father or uncles to seriously harm or kill him despite the many opportunities and years for them to do so and that since the last incident in 1997 that the Applicant has never seen his father again that it is not accepted that after all these years that they would still have any adverse interest in the Applicant or that he will face any such risk or threats from his father or uncles, while even on his own case that the Applicant has never faced any personal risk or threats from any Muslims or Islamic extremists or terrorist groups prior to his departure from Nigeria to justify any non‑refoulement protection, that in any event in the absence of any official involvement 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 186 million people spread across a vast territory of more than 910,000 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 or states such as Lagos where he had stayed before without incidents and where it would be difficult if not impossible for anyone to locate him.

9.  On 18 April 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as his notice of appeal was filed outside the 14-day period required under Section 37ZS (1) of the Immigration Ordinance, and in pursuance of Section 37ZT (2) of the Ordinance, the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the notice of appeal.

10.  By a Decision dated 29 July 2019 the Board refused to allow the late filing of the Applicant’s notice of appeal upon finding that the Director’s decision was sent on the same day of 21 August 2017 to the Applicant c/o his lawyer from DLS without being returned through undelivered post, that the Applicant’s notice of appeal filed on 18 April 2018 was late by some 7 ½ months, that such delay was very substantial and inordinate, that his explanations of being of low education and lack of experience and without legal representation that he did not know how to prepare his application were not acceptable as any valid reason or justification for his such serious delay, and that upon applying the principles laid down by the Court of Appeal in Re Qasim Ali, CACV 547/2018 [2019] HKCA 430 by also taking into account of the merits of the claim and appeal of the Applicant on the factual basis of his case as set out in the Director’s decision and the notice of appeal that the Board agreed with the Director that it is not accepted that the Applicant will face any risk or threats from his father or uncles whom he has not seen since 1998 that there they would still have any adverse interest in the Applicant after all these years, that relevant COI show that the Nigerian government have been successful in containing the threats from those Islamic extremists and terrorist groups including Boko Haram, Fulani herdsmen and MEND that state protection will be available to the Applicant upon his return to Nigeria as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district or the stronghold of those groups mainly in the northern areas by moving to large cities or states such as Lagos where he had stayed before without incidents and without any risk of being located that there is no merits in the Applicant’s claim or appeal or any special circumstances that would make it unjust not to allow the late filing of his notice of appeal.

11.  On 18 December 2020 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 his supporting affirmation of the same date in which he just stated that he does not want to return to his home country as his life is in danger there but without putting forth any proper ground for his intended challenge of the Board’s decision.

12.  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.

13.  As the last day of the three-month period for him to file his Form 86 fell on 29 November 2019 after discounting the month of August 2019 for the court’s vacation, the Applicant was more than 12 months 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.

14.  In the Applicant’s case, a delay of more than 12 months must be considered as very substantial and inordinate, for which he just made bare assertions at the hearing of his application that he never received the decision in the mail, and that he did not know anything about any procedural requirements but without any evidence to corroborate his bare assertions, and as the record shows that the decision was sent on the same day of 29 July 2019 to his then reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay.

15.  As for the merits, if any, of his intended application, as noted above that the Applicant failed to put forward any proper ground in his Form or affirmation for his intended challenge, nor was he able to do so at the hearing of his application. As such, and in the absence of any error of law or irrationality or procedural unfairness in his application for late filing of his appeal to 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.

16.  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.

17.  In the Applicant’s case, the Board refused to allow the late filing of his notice of appeal for the thorough and detailed analysis and reasoning set out in its decision upon correctly applying the applicable law and principles including taking into proper account of the merits of his claim and appeal, and in the absence of any error of law or procedural unfairness in such 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.

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

19.  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 the Director’s consideration and assessment of the Applicant’s non-refoulement claim or in the Board’s determination of his application of late filing of his appeal.

20.  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 serious 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