ELECHUKWU OKECHUKWU VICTOR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 710/2022

[2026] HKCFI 3233

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 710 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 oral submissions by the Applicant in open court;

1.  Extension of time to file the leave application 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 2 August 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 5 January 2021 dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision (“Notice”) dated 16 April 2020 refusing his application for non-refoulement protection.

2.  The Applicant is national of South Africa, now aged 30. He arrived in Hong Kong on 21 July 2019 and overstayed since 21 August 2019. On 10 September 2019, he raised a non-refoulement claim by written signification. His claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4] and 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.

3.  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[5] for reference. In gist, he claims if returned to South Africa, he will be harmed or killed by his uncle because of a land dispute. The Board accepted his account and assessed his claim on the basis of the case as he asserted. However, it found, inter alia, that the past injuries he suffered did not attain the minimum level of severity, that his uncle has no intention to seriously harm or kill him, that the feared ill-treatment does not arise on account of a reason enumerated in the 1951 Convention relating to the status of Refugees and its 1967 Protocol, and that he can mitigate the risk of harm by seeking state protection and internal relocation.

The delay in taking out the leave application

4.  The leave application was filed one year, six months and twenty-eight 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 there is good reason for extending the period within which the application shall be made. The leave application was made almost one year and four months 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.

5.  In AW and Director of Immigration and William Lam[6], 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[7], per Litton PJ. 

6.  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. At the hearing, the Court attempted to explore the reason for the delay with him. The best he could explain is that he did not know about the regulations and time limits. He submitted that he ought to be told about the time limits instead of being required to find it out himself. However sensible that proposition may appear to him, the fact is that it is he who made the application for protection. The burden is clearly on him to apply and prove his claim. If that failed and if he wishes to pursue the matter further, the burden remains on him to prosecute an appeal or a review of the decision. It is his burden to find out the necessary procedure and to take the necessary steps. Three months is usually a more than adequate period to do so. Particularly if one’s life is genuinely at risk, one would have spared no time to make inquiries and to take the necessary action. The Applicant has no reasonable explanation for the almost sixteen months’ delay. The leave application was not promptly made. The Court could not find any good reason to extend the time for filing his leave application.

Conclusion

7.  For these reasons, extension of time to file the leave application and the leave application are 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