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HCAL 3724/2019
[2025] HKCFI 1153
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3724 of 2019
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Iwegbuna Godwin Onochie |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge (Non-refoulement Claims) Philips Wong:
1. Form 86 be amended as follows:- (1) the Torture Claims Appeal Board / Non-refoulement Claims Petition Office be named as the Putative Respondent; and (2) the Director of Immigration be named as the Putative Interested Party.
2. The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By Form 86 filed on 13 December 2019 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office (the “Board”) dated 19 March 2019 (the “Board’s Decision”).
2. In the Form, the Applicant named both the Director of Immigration (the “Director”) and the Board as the proposed respondents, and did not name any interested parties. As it is trite that the Board should be the proposed respondent whereas the Director should be the proposed interested party, I make an order to amend the same accordingly on the court’s own motion.
3. The Applicant had requested an oral hearing for the present application. The hearing took place on 7 March 2025. The Applicant however did not turn up at the hearing. I note from the record that attempts had been made to contact and remind the Applicant of the hearing on 5, 6 and 7 March 2025 but in vain.
Background
4. The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in details 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[1] for reference.
Discussion
5. The Board’s Decision was issued on 19 March 2019. As such, the Applicant should have filed the Leave Application on 19 June 2019 at the latest. The Form was however only filed on 13 December 2019. There had been delay of nearly 6 months.
6. No application for extension of time to file the Leave Application was made by the Applicant. There is equally no explanation for the substantial delay.
7. In considering whether to extend the time for applying for leave for judicial review, the Court shall have regard to, inter alia, the following:- (a) the length of the delay; (b) the explanation of the delay; (c) the merits of the substantive application; (d) the prejudice; and (e) the question of general public importance: Re Thomas Lai [2014] 6 HKC 1, at §§43-45; AW v Director of Immigration and William Lam CACV 63/2015, 3 November 2015, at §27.
8. In the present case, the delay was substantial and inordinate. There is no explanation for such lengthy delay.
9. As the merits of the intended judicial review is a significant factor to be considered in determining whether the Court should extend the time for judicial review, I shall proceed to consider the merits of the Leave Application.
10. The applicable legal principles relating to application of this sort are well established. The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)
11. In the Form, the Applicant did not provide any grounds in support of the Leave Application. In the supporting Affidavit, the Applicant simply stated that the Board had disregarded the danger and threats he would face in his country if he returns there.
12. I have considered the Board’s Decision in details. I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same. Contrary to what the Applicant asserted in the supporting Affidavit, the Board had comprehensively addressed the alleged danger and threats raised by the Applicant (see paragraphs 9 to 20, 29 to 45 of the Board’s Decision). It is also important to note that the Applicant had refused to answer questions from the Board regarding his claims, notwithstanding the Board’s advice that if he did not do so, the Board would proceed to a decision based on the written materials before him.
13. There is nothing to indicate that the Board had failed to take into account any relevant matters. The Board’s Decision was comprehensive with adequate reasons provided. It satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success.
14. Leave application of this sort is meant to be a filtering process and I am not expected to give elaborated reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23). Suffice for me to state that in reaching the decision, I have considered all the relevant documents before me.
Conclusion
15. As the Form was filed substantively out of time and without any valid explanation for the delay, and the challenge to the Board’s Decision is not reasonably arguable, I refuse to grant an extension of time and the Leave Application is hereby dismissed. In the premises, I make an order that the Form be amended as described above and the Leave Application be dismissed.
Dated the 1st day of April 2025.
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(Allen LEE)
for Registrar, High Court |
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
Notes for the Applicants:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 1/4/2025
Iwegbuna Godwin Onochie
Applicant’s ref. no:
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 1/4/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 9040/17/11/51/NI167
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 578/13 (Formerly RBCZ 186/12)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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