OGUIKE KINGSLEY NDUBUISI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 999/2022

[2026] HKCFI 3464

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 999 of 2022

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 the Applicant being absent in open court;

1.  There shall be no extension of time to the applicant to file the Form 86 out of time.

2.  The applicant’s application for leave to apply for judicial review be dismissed.

Introduction

1.  By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 26 September 2022, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 14 June 2022 (“Board’s Decision”) dismissing the applicant's appeal against the decision of the Director of Immigration (“Director”) respectively dated 31 May 2021 rejecting the applicant's non-refoulement claim on all applicable grounds[1]. The Board’s Decision can be viewed at the following hyperlink: -

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL000999_2022_files/the_Board's_Decision.pdf

2.  The basis of the applicant’s claim was that, if refouled to Nigeria, he would be harmed or killed by his powerful and influential paternal uncle who forced the applicant to abandon his Christian faith. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.

3.  Pursuant to the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 2 June 2026. A notice of hearing with a reminder[2] of the consequence of absence dated 4 May 2026 was sent to the applicant’s last known address by ordinary post. The applicant did not turn up at the hearing. Before the hearing, several phone calls were made to the applicant’s given telephone number but to no avail. The information before this court shows that the said notice of hearing has not been returned undelivered through the post.

4.  In the circumstances, this court will dispose of the Leave Application according to the materials already placed before the court.

Discussion

5.  A leave application operates as a ‘filtering’ process. Hence, there is no requirement or expectation to give elaborate reasons for my decision[3]. It is therefore sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.

6.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[4], and further to make full and frank disclosure of all material facts to be verified by an affidavit. No such grounds have been provided by the applicant in either his Form 86 or the supporting affirmation.

7.  As the Courts have repeatedly stated, 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.[5] In the present case, the Board found that the applicant’s claims were unreliable and unconvincing. Even if the Board were to accept the applicant’s claims, it found that state protection and internal relocation would be reasonably available. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.

8.  Bearing in mind the enhanced standard that should be adopted in scrutinizing the Board’s Decision, this court is satisfied that the Board correctly applied the law relating to all the grounds and observed a high standard of fairness. The applicant advanced no grounds at all in support of the Leave Application. Hence, the applicant has not shown any errors of law or procedural unfairness or irrationality in the Board’s Decision. The applicant’s intended challenge to the Board’s Decision is not reasonably arguable with realistic prospects of success such that would enable this court to grant leave[6].

Whether to grant extension of time

9.  Further, there is a delay of about 2 weeks in the filing of the Leave Application. In spite of the insignificant delay, the applicant shall still be required to provide good reason for the delay. The applicant provided no explanation at all for the delay. In the absence of reason for the delay, and importantly, the lack of merits, I refuse to exercise my discretion to grant extension of time.

Orders

10.  There shall be no extension of time to the applicant to file the Form 86 out of time.

11.  The applicant’s application for leave to apply for judicial review be dismissed.

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