EJIKE EMMANUEL SUNDAY v. DIRECTOR OF IMMIGRATION

HCAL 183/2021

[2026] HKCFI 2479

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 183 of 2021

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.

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 19 February 2021 for leave to apply for judicial review (the “leave application”) of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 21 January 2021 (the “2021 Notice”) refusing his request to make a subsequent claim (the “Request”).   

2.  The Applicant had requested an oral hearing.  A hearing on 9 March 2026 was scheduled and notice of hearing was sent to him by post on 25 February 2026 to his address as stated in his Form 86.  An attempt had been made on 3 October 2025 to obtain his up-to-date address from the Immigration Department, but the Immigration Department advised that he had been granted a dependent visa and had not been reporting to the department.  The notice has not been returned in the course of mail.  The Applicant had never informed the court of any change of address since filing his Form 86.  There is nothing to suggest that he had not received the notice of hearing.   An attempt was made on 6 March 2026 to contact him by telephone to remind him of the hearing, but the call was not answered.  The Court was satisfied that the notice of hearing had been duly served on the Applicant and that the Court had tried its best endeavour to bring the hearing to his notice.  He did not appear at the hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

3.  The Applicant is a Nigerian national, aged 43.  He arrived in Hong Kong on 12 September 2014 and overstayed since 20 September 2014.  On 24 April 2015, he lodged a claim for non-refoulement protection by written representation (the “previous claim”).  His personal background, the factual background leading to the present application, the basis of his previous claim and 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.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below[1] for reference.  In gist, he claims he will be harmed or killed by his late father’s business partner and his two sons and their associates (collectively, “his enemies”) for the purpose of excluding him from his late father’s interest in the partnership.

4.  His claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”) and rejected by the Director’s decision in his Notice of Decision dated 26 April 2017 (the “2017 Notice”).  His appeal against the Director’s decisions in the 2017 Notice was dismissed by the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 29 September 2017 (the “Decision”). His application for leave to apply for judicial review of the Board’s Decision in HCAL 774 of 2017 was refused by Campbell-Moffat J on 10 August 2018.  His appeal against that decision was dismissed by the Court of Appeal on 26 February 2019.  His application for leave to appeal to the Court of Final Appeal was dismissed by the Appeal Committee of the Court of Final Appeal on 31 July 2020.  His previous claim has run its full course and the Decision of the Board is now final.  Yet, he did not return to Nigeria. On 12 August 2020, less than two weeks after the Appeal Committee dismissed his appeal to the Court of Final Appeal, he applied to the Director for making a subsequent claim (the “Request”).  His Request was rejected by the Director’s 2021 Notice. He now seeks leave to apply for judicial review of that 2021 Notice.

The law

5.  Under the USM, a person who has previously made a non-refoulement claim may not make a subsequent claim except pursuant to section 37ZO of the Immigration Ordinance.  The section requires an applicant to show to the satisfaction of an immigration officer: (i) a significant change of circumstances since the previous claim was finally determined or withdrawn; and (ii) that the change, when taken together with the materials previously submitted in support of the previous claim would give the subsequent claim a realistic prospect of success.  In deciding whether the applicant may make a subsequent claim, the immigration officer may take into account any finding of credibility or fact made by the immigration officer or the Board in relation to the previous claims made by the applicant.

The Board’s and the Director’s finding in the previous claim

6.  The Board found the Applicant was not a witness of truth and no weight could be attached to his claim.  It was not satisfied that the partnership business asserted by the Applicant exists or that his alleged enemies pose any threat to him and nothing of what he told the Board relating to the business or his father’s relationship with his enemies can be relied upon.  It rejected the Applicant’s claim about the bomb attack at Kaduna which allegedly killed the Applicant’s father. The immigration officer who assessed the Applicant’s claim (the “previous case officer”) made some additional finding.  In view of the Board’s finding, there is no need to refer to the previous case officer’s finding, which in any event has no relevance to the Applicant’s intended subsequent claim.

The immigration officer’s decision in the 2021 Notice

7.  In his Request, the Applicant relied on two sources of harm.  First, he repeated his account in the previous claim, which had been rejected by the Board as not proven.  He produced a copy of a loan document between his father and his father’s business partner as evidence of the existence of his father’s partnership business (Document I) which the Board found did not exist.  He explained that his father was an active partner while his partner was a dormant partner who funded the business with intention to share in its profits.  He also alleged that his enemies approached his friend Onyekachi to send him a message that unless he delivered up Document I for destruction, they would not give up hunting for him.

8.  Second, he advanced a new source of harm.  He claimed that while he is in Hong Kong, he joined the Hong Kong Branch of the Indigenous People of Biafra (the “IPOB”).  The IPOB is a Biafran separatist organization in Nigeria.  Its main aim is to restore an independent state of Biafran.  It has been labelled as a terrorist organization by the Federal High Court in Abuja.  The Applicant claimed that the Nigerian State used violent and excessive police force to stop the pro‑Biafran movements, including massacre and extra-judicial killing.  He claimed that the Hong Kong branch of IPOB was established in 2015 or 2016 and that his position is a provost whose duty is to keep the peace of the meeting.  He claimed that he constantly engaged in the IPOB protests against the Nigerian government in Hong Kong and contributed financially to the IPOB by paying a monthly levy.  He claimed he will be arrested, tortured and killed, if returned to Nigeria.  He produced copies of 14 photographs of his participation in IPOB activities in Hong Kong (Document II) and copies of 9 invoice issued by the IPOB as evidence of his financial contribution to the IPOB (Document III). 

9.  The immigration officer rejected the Applicant’s first source of harm as a repetition of his previous claim, which had been rejected by the Board as not proven or effectively as fabrications.  That finding of the Board is now final and binding on the Applicant.  Even accepting the Applicant’s evidence about the loan agreement, the attempted attack on Onyekachi and the vandalism of Onyekachi’s home, the immigration officer found that the feared risk arising from his enemies had been duly considered and rejected in the previous claim.  He considered the attempted attack on Onyekachi was just an update of the situation in the Applicant’s home place which does not add much substance to his Request.  He found even if it is accepted that there is still pressure exerted to the Applicant’s family friends from the partner, it does not amount to a significant change of circumstance of his case warranting the making of a subsequent claim.

10.  As for the new source of harm based on his participation in the IPOB’s activities and protests in Hong Kong, the immigration officer found there is no information that the Applicant had ever participated in protests or any illegal activities in Nigeria, that he is a target of the Nigerian government, or that he would be subjected to real risk of ill-treatment or harm in Nigeria.  He seemingly accepted the Applicant’s participation in the IPOB’s activities in Hong Kong constituted significant change in circumstance, but did not accept that it would give the subsequent claim a realistic prospect of success.  Hence, he refused the Applicant’s Request.

The legal principles applicable to judicial review

11.  The function 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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[2].

Grounds for judicial review

12.  The Applicant did not advance any grounds for judicial review in his Form 86.  He made the following observations in his supporting affirmation, which the Court assumed to be his grounds of application:

(a)   the Applicant is a genuine non-refoulement claimant facing dangerous problems, harassment and torture in his home country:

(b)   that the Director reached the wrong decision in rejecting his claim without making proper inquiry and he invited the Director to send his immigration officers to tour India to study the situation there;

(c)   that if he did not flee Nigeria, he would have been killed;

(d)   for the above reasons, leave to apply for judicial review should be given; and

(e)   he asks for leave to be granted. 

13.  Point (a) asserts that the Applicant is a genuine asylum seeker entitled to non-refoulement protection.  As the immigration officer found he is not entitled to protection, this is a direct challenge of the officer’s finding of fact which is not permissible. 

14.  Point (b) is directed at the Director’s decision in the 2021 Notice, but it discloses no particulars of what is wrong with the 2021 Notice.  As for the Applicant’s suggestion of the Director sending immigration officers to the Applicant’s home country to make investigations, it is clearly impracticable.  The officers also have no authority to carry out investigations in Nigeria.  Furthermore, it could not have been the intention of any court laying down the high standard of fairness that such standard requires the decision maker to make an in situ investigation whether of the claimant’s claim or the general human rights situation in the risk state.  The immigration officer accepted the Applicant’s claim about the Nigeria’s treatment of the IPOB, the police use of violence and excessive force to suppress the pro-Biafran movements and extra-judicial killings.  It also accepted the Applicant’s participation of anti-government activities in Hong Kong.  Sending immigration officers to Nigeria to make investigation would serve no purpose at all.   

15.  Point (c) is a direct challenge of the Board’s finding of fact which is not permissible, save for errors of law, procedural unfairness or irrationality in the Decision. 

16.  Points (d) and (e) are the relief sought.  They are not supported by particulars.  

17.  All these points are lacking in particulars.  None of them could be valid grounds of application.  In the absence of proper grounds or grounds with adequate particulars, the Court in an application for leave to apply for judicial review could only focus its attention on these elements in its anxious scrutiny of the Decision.

Overall scrutiny

18.  Having considered the Request, the Director’s 2017 Notice and the Board’s Decision, and having rigorously examined the 2021 Notice with anxious scrutiny, the Court is satisfied that the immigration officer had correctly set out the law and key legal principles relating to the making of a subsequent claim under section 37ZO of the Immigration Ordinance; correctly identified the issues; and properly analysed the evidence. 

19.  In his Request, the Applicant repeated his previous claim based on his fear of harm from his father’s business partner and introduced a new claim based on his participation in the IPOB in Hong Kong.  He produced some new evidence relating to his fear based on the previous claim, namely the loan agreement and the threat via his friend.  However, the immigration officer found the fear arising from his enemies had been considered in the previous claim.  The Board had found no credence could be given to the Applicant’s evidence on the previous claim.  Thus, the new evidence could add nothing to what the Board had found was not credible or was just a concoction.  The immigration officer therefore found the new evidence does not amount to significant change in circumstance since the previous claim was finally determined.  

20.  In respect of his new source of fear, the immigration officer found even accepting the information about the Nigerian government actions against the pro-Biafran movement and his participation in the Hong Kong Branch of IPOB are, the information is just generic information which does not make any reference to the Applicant personally and there is no evidence that he had participated in any protests or illegal activities in Nigeria or that he is a target of the Nigerian government.  The immigration officer therefore found even if the information and the Applicant’s participation in the Hong Branch of IPOB are sufficient to constitute significant changes in circumstance, those changes together with the materials in the previous claim would not give the intended subsequent claim a realistic prospect of success. 

21.  These findings are essentially mixed findings of fact and of the law.  On the evidence as presented by the Applicant, it was open to the immigration officer to make those findings.  Insofar as these are findings of law, they are absolutely correct.  Insofar as those findings are findings of fact, they are solely within the province of the immigration officer which the Court in a judicial review may not interfere, save for errors of law, procedural unfairness and irrationality.  The Court could detect no errors of law or procedural unfairness in the 2021 Notice.  The 2021 Notice does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The proposed judicial review has no realistic prospect of success.

Conclusion

22.  For the above reasons, the Applicant’s application for leave to apply for judicial review of the Director’s decision in his 2021 Notice of Decision is refused.

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