OKOYE CHINEDU PAUL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 615/2022

[2026] HKCFI 3232

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 615 of 2022

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 the Applicant being absent in open court;

1.  Extension of time to file the Form 86 be refused; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 14 July 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 1 March 2022 dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision refusing his application for non‑refoulement protection (the “Notice”).

2.  The Applicant had requested an oral hearing. A hearing on 20 May 2026 was scheduled for him and notice of hearing was sent to him by post to his address as stated in his Form 86 and the address updated by the Immigration Department on 9 March 2026. Neither of the notices has been returned through the post. The Applicant had never informed the court of any change of address. There is nothing to suggest that he had not received either of the notices. The similarity of the two addresses suggests that the latter one is likely to be an incomplete address. On the afternoon of 19 May 2026, a court staff attempted to contact the Applicant on his telephone number provided by him when filing his Form 86 and his telephone number obtained from the Immigration Department to remind him of the hearing. The staff was informed by the telecommunication service provider that the former number had not been registered for service. The call to the latter number was not answered. The Court is satisfied that the notice of hearing had been validly served on the Applicant and that it had done all it could to bring the hearing to his notice. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

The delay in taking out the leave application

3.  The leave application was filed four months and thirteen days after the date of the Decision sought to be reviewed. Under section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, a leave application shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made. The leave application was made one month and thirteen days beyond what is usually regarded as having been promptly made. The Applicant has to show good reason for extending the time to file the leave application.

4.  In AW and Director of Immigration and William Lam[1], 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. Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in favour of granting extension, the court would be more relaxed with the remaining two. Conversely, if it is against the granting of extension, there is no need to consider the remaining two factors. However, 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[2], per Litton PJ.

5.  Despite clear warning in the Form 86 that an applicant is required to state his grounds for application and reasons for delay, if any, the Applicant provided no explanation for the late application. He did not attend the hearing and forwent his last opportunity to explain the inordinate delay. The Court, therefore, could not find any good reason to extend the time for filing his leave application. Though the leave application was made one month and thirteen days beyond what is usually regarded as having been promptly made, it may not be regarded as a trivial breach of time limit in view of the provisions in Order 53, rule 4(1) that the application “shall be made promptly and in any event within three months”. It makes no difference whether it was one day out of time or one year out of time. If it was not promptly made, it may not be made unless there is good reason. The leave application was not promptly made and the Court could not find any good reason to extend the time for filing his leave application. The principle in Po Fun Chan v Winnie Cheung is applicable. Nevertheless, out of abundance of caution, the Court considered the merits of the application hereunder.

Background

6.  The Applicant is Nigerian national, now aged 49. He arrived in Hong Kong on 1 October 2019 and overstayed since 16 October 2019. On 24 October 2019, he surrendered to the Immigration Department. Subsequently, he made a claim for non‑refoulement protection by written signification. His claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[3]; BOR 3 Risk[4]; Persecution Risk[5]; and BOR 2 Risk[6]. His claim was rejected by the Director’s Notice. His appeal against the Notice was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

7.  The Applicant’s personal background, the basis of his claim, the arguments he advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision. The hyperlink to the Board’s Decision is included below[7] for reference. In gist, he claims he will be targeted and harmed by the Nigerian authorities because of his involvement in the Indigenous People of the Old Biafra State (the “IPOB”).

8.  The IPOB calls for independence for what used to be the old Biafran states. It has been categorized by the Nigerian government as a terrorist group under the Nigerian Terrorism Act. The Applicant claims that he joined the IPOB in 2016 and was promoted to be the sole public relation officer of the local leader in Ifako, Ijaiye, Lagos (the “local leader”). As the sole public relation officer, he answered enquiries from the public, arranged meetings and rallies, attended all the meetings with the local leader and was in charge of the contacts of all members of the Igbo community. He claims to be the right hand man of the local leader. He produced a membership certificate dated 19 December 2016 purportedly issued by the local leader and a copy of an IPOB identity card (the “ID card”) as documentary evidence of his membership and position in the IPOB.

9.  As a businessman, the Applicant travelled a lot but never encountered any issues with the Nigerian border control. On 30 September 2019, he left Nigeria to come to Hong Kong to buy mobile phones for resale in Nigeria. While in Hong Kong, he received a call from a member of the IPOB in October 2019 telling him that their local leader was shot and killed in his neighbourhood along with other IPOB members while he was leading a rally in Lagos. The Applicant claimed that he continued to attend IPOB activities and participated in gatherings organized by the IPOB Hong Kong chapter and met with IPOB supporters. As the sole public relation officer and right hand man of the local leader, the Applicant fears that he would be targeted for harm upon his return to Nigeria. But to his understanding, the authorities have not gone to his home to look for him by the time of the hearing before the Board, which was more than two years after his local leader was shot.

The finding of the Board

10.  The Applicant testified at the hearing before the Board. The Board found his account as set out in his non-refoulement claim form (“NCF”) lacking in detail, inconsistent with his account in other settings, or simply defy logic. The Board had studied extensively into country of origin information (“COI”) about Nigeria, particularly the IPOB. It tested the Applicant’s evidence against common sense, inherent probability and the COI. It found numerous and significant contradictions among the Applicant’s evidence in his NCF, ROI, his testimony and the COI. For example, the Applicant could not explain why the logo shown on the membership certificate is different from that shown in the official webpage of the IPOB. While the Applicant admits that the signature made as the ‘Holder’s Signature’ on his ID card is his signature, he could not explain why that signature is very similar to the signature made as the ‘Authorised Signature’. He could not explain why his ID card contains a request to any person who finds the ID card to return it to the “nearest police station”, given that the IPOB had been categorized as a terrorist organization since 2015. Furthermore, the copy of ID card states that the address of the IPOB as a Community Hall in London, but the postal code stated therein denotes a residential address. Internet research also clearly states that the postal code of the alleged Community Hall is not the same as the one stated on the copy of the ID card. All these contradictions defy logic. The Board was not satisfied that the Applicant’s IPOB membership certificate is authentic and that the copy of his ID card is a copy from an authentic IPOB identity card.

11.  Based on these and some other contradictions and inconsistencies, the Board found the Applicant incredible and did not accept his evidence, save for his evidence about his personal background. It found the Applicant had failed to prove the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM. Applying the law to the very limited facts it found, the Board was not satisfied that the Applicant is entitled to protection under any of the applicable grounds under the USM. Hence, it dismissed his appeal against the Director’s Notice.

Legal principles applicable to judicial review

12.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[8].

Grounds for judicial review

13.  The Applicant had not advanced any grounds of application in his Form 86 or supporting affirmation. In the absence of particularised grounds, the Court could only focus on errors of law, procedural unfairness or irrationality in its overall scrutiny of the Board’s Decision.

Overall scrutiny

14.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board researched extensively into country of origin information about Nigeria, particularly the IPOB. It tested the Applicant’s evidence against common sense, inherent probability and the COI. For reasons as set out in paragraphs 10 and 11, it found the Applicant incredible and his account illogical. It rejected the entirety of his evidence except for those relating to his personal background. Credibility and weight to be given to evidence are finding of fact solely for the Board, which the court in an application for judicial review will not intervene save for errors of law, procedural unfairness or irrationality in the Decision. The Board gave detailed reasons for its finding. On the evidence, it was open to the Board to make the finding as it did. Applying the law applicable to non-refoulement protection to the facts that it found, it was not satisfied that the Applicant is entitled to protection under any of the applicable grounds under the USM. The Board’s finding are mixed finding of the fact and of the law by the Board, mainly the former. Insofar as these are finding of the law, they are absolutely correct. Insofar as they are finding of fact, they are exclusively within the realm of the Board, which the Court on a judicial review may not interfere, save when such finding was made as result of error of law or procedural unfairness or irrationality in the Decision. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant had failed to discharge his burden of proving the factual basis to support his claim for protection. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

15.  The leave application not having been promptly made and the Applicant not having shown any good reason for late filing, extension of time to file the leave application and the leave application are refused. Further and in the alternative, the leave application is refused as the proposed judicial review has no realistic prospect of success.

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