ONWUFUJU IFEANYI CHARLES v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2439/2019

[2025] HKCFI 3657

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2439 of 2019

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 oral submissions by the Applicant in open court;

1.  The Applicant’s Form 86 be amended as stated in paragraph 1 below; 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 22 August 2019 for leave to apply for judicial review (the “leave application”) of a decision dated 19 July 2019. He named “USM” as the proposed respondent and did not adequately identified the decision sought to be reviewed. In his supporting affidavit, he annexed a copy of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 19 July 2019 (the “Decision”) refusing his late filing of the Notice of Appeal (“NoA”) against the decision of the Director of Immigration (the “Director”) in his notice of further decision dated 29 March 2017 (the “Further Notice”) refusing his claim for non-refoulement protection under BOR 2 Risk[1]ground. Piecing these information together, it is obvious that the Applicant’s intention is to review the Board’s Decision in refusing his late filing of the NoA. Hence, on its own motion, the Court amended his Form 86 by making the Board the proposed respondent and its Decision dated 19 July 2019 the decision in respect of which relief is sought (the “Decision”).

2.  The Applicant did not request an oral hearing. Having considered the nature of the application and issues raised, the Decision, the Notice, the papers, and all the circumstances, the Court considered the application could be justly determined on paper without an oral hearing.

3.  The Applicant is a Nigerian national. He claims non-refoulement protection on the ground that if returned to Nigeria, he will be killed by his uncle who wanted to take over his ancestral land. His claim was assessed and rejected by the Director under Torture Risk[2]; BOR 3 Risk[3]; and Persecution Risk[4] then available under the Unified Screening Mechanism (the “USM”) in 2015. His appeal was dismissed by the Board’s decision dated 23 March 2017. He did not challenge that decision, which became final.

4.  In January of the same year, the Director further assessed his claim under BOR 2 Risk ground which had become available under the USM; but the Director also rejected it by his Notice of Further Decision dated 29 March 2017 (the “Further Notice”). The Applicant filed a NoA against the Further Notice six months and twenty-two days out of time. By its Decision dated 19 July 2019, the Board refused his late filing. The Applicant now seeks to judicially review that Decision.

Grounds for judicial review

5.  The Applicant did not advance any grounds of appeal in his Form 86, or his supporting affirmation. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

Overall scrutiny

6.  The decision which the Applicant seeks to judicially review is the Board’s Decision refusing his late filing of the NoA. That is a decision which the Board is not only mandated but is required to make under section 37ZT(2) of the Immigration Ordinance as a preliminary decision without a hearing whether to allow the late filing of the NoA. The relevant factual background leading to this leave application has been summarized above. The scope of review is very narrow.

7.  Having rigorously examined the Decision, the papers, and the evidence with anxious scrutiny, this Court is satisfied that the Board had correctly set out the law and the relevant statutory provisions and legal principles relating to late filing of NoA, correctly identified the issues and observed a very high standard of fairness. The Applicant’s explanation for the late filing as stated in section 5 of the NoA is:

“Am late submit my application I was asked to bring notice of further decision”

8.  The Board reminded itself of the provisions under section 37ZT and paragraph 9 of the Practice and Procedural Guide of the Administrative Non-Refoulement Claims Petition Scheme (“Petition Guide”) relating to late filing of the NoA. It referred to the decision in Re Thomas Lai Application for Leave to Apply for Judicial Review[5] and adopted the principle that as long as no prejudice is caused, the Board will not rely on provisions as to time limits to deprive a litigant who has behaved sensibly and reasonably of relief to which he is otherwise entitled. It also accepted the following factors as relevant factors for deciding whether there is good reason for extending time: (i) the length of the delay, (ii) an explanation for the delay, (iii) the merits of the substantive application, (iv) prejudice, and (v) whether the application raises questions of general public importance. While Re Thomas Lai is a decision about delay in filing leave application in judicial proceedings and not about filing appeal in an administrative tribunal, this Court considers the principles are equally applicable to proceedings before the Board. In fact, the principles in Re Thomas Lai encompass the principles stated in The Secretary of State for the Home Department v Begum[6] as well as the later decision in Re Madbar Abdul Salam[7] published in June 2019 one month before the Board’s Decision, which the Board was probably not aware of. Begum is a well established United Kingdom authority setting out the three stage approach in deciding whether to grant extension of time to comply with procedural time limit. Re Madbar Abdul Salam is the local Court of Appeal authority for the proposition that merits in the intended judicial review is one of the factors to be considered in deciding whether there are special circumstances to justify extension of time. All boils down to the same question, ie whether indulgence in the form of extension of time should be granted because of merits in the substantive application. Despite Begum and Re Madbar Abdul Salam had not been referred to by the Board, the legal principles it applied are correct.

9.  Against a fourteen days period of appeal, the Applicant’s delay of more than six and half months is very substantial. The Board considered there was no coherent explanation for the long delay and there was no good reason for allowing the late filing. In search for other matters of fact known to the Board which might be relevant to the decision which it was going to make, the Board examined merits of the Applicant’s claim. It found the Applicant’s claim under the Torture Risk, BOR 3 Risk and Persecution Risk grounds had been found to be unmeritorious and had been finally determined by the Board. The finding of fact in those claims has some bearing on the Applicant’s claim under BOR 2 Risk ground. The Board found there was nothing obviously wrong with the Director’s decision in the Further Notice. Accordingly, the Board reached the conclusion that there were no special circumstances which would make it unjust not to allow the late filing. Hence, it refused his late filing of the NoA.

10.  The Board’s Decision is essentially a mixed finding of fact and of the law. Insofar as it is a finding of law, it is absolutely correct. Insofar as it is a finding of fact, its primary finding is well supported by incontrovertible evidence, while its secondary finding is one which the Court in a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. 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 failed to discharge his burden of showing a reasonable explanation for the late filing. The Decision is fully justified by the evidence. It is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

11.  For the above reasons, the Court amended the Applicant’s Form 86, but the Applicant’s leave application as amended 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