ANAZODO GODSON NCHEKWUBE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 136 /2025, [2026] HKCA 481

On appeal from [2025] HKCFI 436

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 136 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO 2615 OF 2019)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

Background

1.  On 18 February 2025, Deputy High Court Judge K W Lung refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”)  concerning his non-refoulement claim[1].

2.  On 17 April 2025, the applicant filed a summons to seek extension of time to appeal against that decision at the Court of First Instance.  The summons was dismissed by the judge on 15 July 2025[2]. The applicant filed a renewed application for extension of time to appeal with the Court of Appeal on 24 July 2025.

3.  The applicant is a national of Nigeria.  He last entered Hong Kong as a visitor on 25 March 2015 and subsequently overstayed.  He lodged a non-refoulement claim on 12 April 2017.  His claim was made on the basis that, if refouled, he would be harmed or killed by Boko Haram because he is a Christian.  He also feared that he would be harmed or killed by the fathers of his apprentices because they think that the applicant should bear responsibility for the deaths of their sons. 

The decisions of the Director and the Board

4.  By a Notice of Decision dated 30 November 2017, the Director of Immigration (“the Director”)  rejected the applicant’s claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].  His appeal was dismissed by the Board on 5 September 2019.

The intended judicial review

5.  On 9 September 2019, the applicant filed a Form 86 and an affidavit in HCAL 2615/2019 to seek leave to bring judicial review against the Board’s decision.  The leave application was dismissed by the judge on 18 February 2025.

Grounds of Appeal

6.  The applicant stated the following grounds in his written submissions:

(1)  His case has not been determined fairly;

(2)  He was deprived of the right to make full grounds for appeal as the determination has not been translated to him.  He had to submit everything in English because the court would not accept grounds written in his own language;

(3)  The judges have erred in determining that the judge had not failed to appreciate the significance of the non-refoulement claim;

(4)  The lack of assistance provided to him is an error of law or procedure, or evidence of procedural unfairness, or failure to adhere to a high standard of fairness.  Non-refoulement claims are life and limb cases and should be assessed with caution, taking into account his vulnerability and disadvantage;

(5)  The authorities should take into account the real procedural unfairness and put aside public policies of trying to dispose of non-refoulement claim as quickly as possible;

(6)  He was never provided with proper legal and language assistance;

(7)  The discriminatory act of the authorities towards non-refoulement claimant is unacceptable and is detrimental to the spirit of the judicial system;

(8)  The respondent’s decisions in refusing his appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness.

Analysis and disposition

7.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the respondent if an extension of time were granted.

8.  Pursuant to Order 53, rule 3(4)  of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  The order was made on 18 February 2025 and the applicant was late by about 1½ months when he took out the summons at the court below on 17 April 2025.

9.  In the affidavit filed in support of the present application, the applicant explained that he did not know the court procedure and was not aware of the deadline for filing a notice of appeal.  Ignorance of the rules is not a satisfactory reason for the delay.  As the delay is inexcusable, the applicant must show a real prospect of success on the merits to obtain an extension of time to appeal (Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125).

10.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

11.  In the present case, interpreter services were provided at hearings at every stage and at the time when the applicant was assisted by Duty Lawyer.  The high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as he may desire (Re Gurung Sagar [2019] HKCA 658 at §12). 

12.  Besides, all court documents including the supporting affidavits and written submissions of the applicant were written in English.  This indicates that either the applicant is himself conversant with the English language or he has access to language assistance of his own if needed. 

13.  As for the ground relating to the lack of legal representation, the Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings (Re Paswan Shibu Lal [2018] HKCA 249 at §21).  The applicant already had the benefit of legal representation in presenting his case to the Director.

14.  Therefore, the grounds relating to the lack of proper language and legal assistance have no merit.  

15.  The rest of his grounds are just bare assertions without sufficient particulars or evidence in support.

16.  For the above reasons, there is no prospect of success in the intended appeal.  Therefore, we refuse to grant extension of time to appeal against the judge’s decision of 18 February 2025 and dismiss the summons filed on 24 July 2025.