Mgbenka Kingsley Onyekachi v. Director of Immigration

HCAL 264/2023

[2024] HKCFI 1173

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 264 OF 2023

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by counsel for the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  Extension of time for the application for leave to apply for Judicial Review  be granted;

2.  Leave for the Applicant to apply for Judicial Review of the decision of the Director of Immigration dated 19 September 2022 be granted;

3.  The Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule 5 of the RHC (Cap 4A); and

4.  The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Director of Immigration as respondent.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 19 September 2022 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after his previous claims had been rejected by both the Director and the Torture Claims Appeal Board (“the Board”) under the Unified Screening Mechanism (“USM”) on all applicable grounds.   

2.The Applicant is a 40-year-old national of Nigeria who arrived in Hong Kong on 28 May 2011 as a visitor with permission to remain as such up to 18 June 2011 when he did not depart and instead overstayed, and was arrested by police on 9 July 2011.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Nigeria he would be harmed or killed by his paternal uncle and/or customers over their land and/or business disputes.

Previous Non-Refoulement Claim          

3.By a Notice of Decision dated 27 November 2015 and a notice of Further Decision dated 23 January 2017 the Director rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

4.In his decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and found that it was fraught with credibility issues, unconvincing and improbable that the credibility of his claim was not credible and that it was not accepted that he will face any real risk of harm from his uncle or customers upon his return to Nigeria, that in any event even if his claimed risks were real that they arose from some private personal disputes between them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Nigeria with a large population spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from his home district in large cities such as Lagos where it would be difficult if not impossible for anyone to locate him.

5.The Applicant’s appeal against the Director’s decisions was dismissed by the Board on 3 April 2017 after he failed to attend the scheduled hearing before the Board without any explanation and upon finding no merits in his claim or appeal, and that the Board also confirmed the Director’s decisions.

6.The Applicant’s application for leave to apply for judicial review of the Board’s decision was also refused by this Court on 16 June 2020 upon finding that it was late by some 7 months with no good reason for such serious delay, that none of the proposed grounds for his intended challenge reasonably arguable, that there was no error of law or procedural unfairness in his process before the Board or in its decision, and that there was no merits or prospect of success in his intended application (HCAL 156/2018 [2020] HKCFI 883).

7.The Applicant’s subsequent appeal against the Court’s decision was dismissed by the Court of Appeal on 15 March 2021 (CACV 446/2020 [2021] HKCA 314).

8.The Applicant’s Notice of Motion for leave to appeal against the Court of Appeal’s decisions was also dismissed by the Court of Appeal on 17 September 2021 ([2021] HKCA 1322), and then by the Appeal Committee of the Court of Final Appeal on 14 June 2022 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A.

Request To Make Subsequent Claim

9.Some 4 weeks later on 15 July 2022 the Applicant in writing to the Immigration Department requested to make a subsequent claim on the following bases:

(a)  That he continued to be at risk of harm arising from the disputes with his uncle Ben as set out in his previous claim;

(b)  That since arriving in Hong Kong, significant and material changes have taken place in Nigeria as to anti-Christians activities that cause him to fear of being at risk of persecution for his Christian belief;

(c)  That being born as an ethnic Igbo and having in 2018 joined their nationalist movement known as Indigenous People of Biafra (“IPOB”) that he fears of being persecuted by the current Nigerian government;

(d)  That the security situation in Nigeria has deteriorated drastically since he left the country in 2011 to the extent that he now fears would increase his personal risks to religious and political persecutions if refouled to his home country.

10.There are however constraints on a claimant who has previously made a non-refoulement claim to make a subsequent claim, as stipulated by Section 37ZO of the Immigration Ordinance as follows:

“(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that –

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3) In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.

(4) If an immigration officer decides that a person may make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision.

(5) If an immigration officer decides that a person may not make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision, and the notice must also include the reasons for the decision.”

11.Accordingly, on 2 August 2022 the Director required the Applicant to provide further information and evidence in writing in support of his request within 14 days, which he subsequently did via his lawyer from Duty Lawyer Service (“DLS”) including details of his claimed current situations in Nigeria such as the government military actions against IPOB, the anti-Christians terrorist activities by Muslim terrorist groups such as Boko Haram, and the political policies of the government under President Muhammadu Buhari towards the Islamization of Nigeria, as well as news articles of killings and shootings of Christians and other violent activities of terrorist groups and government military actions together with a documentary proof of the Applicant’s membership of IPOB.

Director’s Decision to Refuse the Applicant’s Request    

12.By a Notice of Decision dated 19 September 2022 Director refused to allow the Applicant to make a subsequent claim upon finding that the basis of risk from his uncle was essentially the same as that of his previous claim, and that he failed to provide sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since his previous claim was determined as he was already a Christian prior to his departure of the country without any evidence that he has ever been personally targeted or faced any personal risk as a Christian while in Nigeria that his fear of harm from Muslim terrorist groups such as Boko Haram upon his return to Nigeria is only based on his own speculations, or that those changes when taken together with the material previously submitted in support of his previous claim such as those COI in the Board’s decision of his previous claim which showed reasonable availability of state protection from his claimed harm upon his return to Nigeria that it is not accepted that the Applicant’s intended subsequent claim would have any realistic prospect of success.

Applicant’s Judicial Review Application

13.On 21 February 2023 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, and subsequently with legal representation on pro bono basis after his application for Legal Aid was unsuccessful, he put forward the following interrelated grounds for his intended challenge:

(1)  That the Director failed to discharge its investigative duty in evaluating the evidence and/or materials capable of substantiating a significant change of circumstances with anxious scrutiny;

(2)  That the Director failed to give any or adequate reasons in concluding that there was no significant change of circumstances.

14.The Applicant was however by then already out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

15.As the last day of the 3-month period for him to file his Form 86 fell on 19 December 2022, the Applicant was therefore some 2 months late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration; AW v Director of Immigration [2016] 2 HKC 393.

16.In the Applicant’s case, a delay of 2 months must be considered as substantial and inordinate, for which he explained in his affirmation that on 18 November 2022 when he was still within the 3-month period tried to file his Form 86, he was unable to do so as he was then required by the Registrar to attend a hearing before the Practice Master for clarification and confirmation that it was not a duplication of his previous application regarding his previous claim but instead is a challenge of the new decision of the Director regarding his subsequent claim, for which he was then advised to take a month to reconsider the prospect of his intended subsequent claim, but which caused him confusion and did not know what to do other than to make an application for Legal Aid which turned out to be unsuccessful, and when he was finally able to obtain his current legal representation on pro bono basis, he was already out of time when he tried to file his Form 86 again on 21 February 2023.

17.The record shows that the Director’s decision was sent on the same day of 19 September 2022 to the Applicant’s then reported address without being returned through undelivered post, but it is noted that his Form 86 was indeed dated 18 November 2022 and was also the date when the court fees were paid, and that a hearing before the Practice Master did also take place subsequently on 22 November 2022, and later on 9 January 2023 that the Applicant did write to the Registrar indicating that he wanted to continue with his intended application for leave to apply for judicial review but was confused as to what he should do next.  In the circumstances, and given that he was then without legal representation or assistance, I am prepared to give the Applicant the benefit of the doubt that he was ready to file his Form 86 by late November 2022 when he was then still within time but due to subsequent events as alleged that he became confused which caused the delay.

Grounds for Judicial Review

18.As for the merits of his intended application, as noted above that the Applicant has put forward 2 proposed grounds for the challenge of the Director’s decision which as suggested by his counsel Mr Jonathan Kwok in his Skeleton Argument are interrelated, and in my view can therefore be considered together, but it would be relevant to first note, as stated above at [10], for an applicant to want to make a subsequent but who has previously made a non-refoulement claim which has been properly disposed of by the Director and the Board under the 2-tier screening process of USM and which would almost inevitably accord him with one or more oral hearings to present his claim, there are certain constraints and conditions to comply with, obviously for the purposes of filtering out unmeritorious claims and abuses as well as to save time and costs, and that the applicant must start by way of a written request to the Director to be supported by sufficient evidence in writing to satisfy an immigration officer of 2 requirements: (i) that there has been a significant change of circumstances since the previous claim has been determined or disposed of, and (ii) that the change when taken together with the material submitted for the previous claim would give the subsequent claim a realistic process of success: Section 37ZO (2) of the Immigration Ordinance.

19.In doing so the immigration officer would consider all the supporting evidence as submitted, usually without any oral hearing or screening process which is within the officer’s discretion, and only if the request is so allowed that the applicant would be able to proceed to have his subsequent claim duly processed, evaluated and determined, as in his previous claim, under the 2-tier screening process by both the Director and the Board, and usually with the benefit of being able to make oral representations in an oral hearing under each tier of the screening process.

20.For cases where the factual bases of the subsequent claim are essentially the same or similar to those of the previous claim where findings of facts had already been made by both the Director and the Board, the immigration officer would be able to filter out such requests without much difficulty and without the need of any oral hearing or screening of the applicant.

21.However, where the factual bases for the subsequent claim are not the same or similar as in the previous claim, or that there are new evidence to suggest a significant change of circumstances since the previous claim has been disposed of, serious issues may arise as to whether such a request could and would be fairly and properly investigated assessed and determined by the immigration officer in such manners and without the benefit of any oral screening, since a refusal of the request would no doubt deprive the applicant of the 2-tier screening process under USM of his subsequent claim where his life and limbs would certainly again be said to be at stake, and where high standards of fairness would be applied in the process. Indeed, as evidenced by the proposed grounds of the Applicant, such issues did arise in the present case.

Grounds (1) & (2) Failure to Discharge Duties to Investigate and to Give Adequate Reasons                 

22.It is relevant to first set out as follows the Applicant’s intended subsequent claim as recorded in the Director’s decision and which the Applicant argues that the Director had failed to properly investigate:

“11. Turning to the Request, according to your letter of 15 July 2022, you claimed that:-

(a) You lost both your parents before the age of 12. You are a devout Christian and from Igbo ethnicity;

(b) Your fear of being killed or harmed is well founded since the death of your father and your mother in around 1987/1988 and 1995 respectively. Ben had physically abused you during your stay in Nigeria. Ben, who claimed your inherited parcel of land, had informed your family friend Mr James in May 2022 that he would kill you whenever you returned to Nigeria. Again, in around early July 2022, Ben suddenly called your Hong Kong phone number and threatened you, ‘Kingsley any day you return to Nigeria, you will be a dead man’ and ‘I will not share the land with you, I will kill you and the Nigerian police will not protect you.’ Immediately, he dropped the phone and could not allow you to say anything. You do not know how he got your phone number;

(c) You believe that the threat to your life from Ben is a serious one. The Nigerian police and authority will not protect you due to corruption. You believe that you will genuinely and foreseeably fall into imminent risk and danger upon your return to Nigeria. The state and authority would not protect you. Even after 2011 since you left Nigeria, Ben had been threatening your life. You are very scared to return to your home country because land related death is quite common in Nigeria;

(d) Nigeria has degenerated into a political anarchy, particularly now that Nigeria is embracing presidential election in 2023. During this election period, there are series of political campaign in the whole country. The campaign is often marred with violence between the two major political parties, the All Progressive Congress Party (‘APC’) and the People’s Democratic Party (‘PDP’). In the interim, politically related deaths are recorded in which several people are caught up in the mix, from now until May 2023. It is indeed a dangerous time to return to Nigeria due to absolute state of lawlessness and political violence. Procurement of firearms from hoodlums and miscreants are rampant. The state and authorities will not protect anyone. Therefore, you believe that your life would be at risk during this dangerous period, in which protection would not be available; and

(e)   Since early 2021, the disturbing dominance of insurgencies non-state actors are a real course for concern.  There are separatist groups and terrorist organizations in the six geopolitical zones of Nigeria, namely, Islamic State’s West Africa Province (‘ISWAP’), Boko Haram, Fulani Herdsmen, Unknown Gunmen, Banditry, and Kidnappers.  The option of relocation is therefore implausible.  The combination of the above-mentioned insurgencies and terrorist organizations have comprehensively overwhelmed the strength of the Nigerian security architecture.  The failure of the Nigerian army and the police force to safeguard lives and properties is presently at its lowest ebb. It is quite alarming to witness the weakness of the Nigerian authorities’ defenseless mechanism to the detriment of the hopeless and unprotected citizens.  To this end, relocation and state protection would not be a viable option to you in the event of your return to Nigeria.”

23.In the same letter the Applicant enclosed 8 supporting documents mainly news articles of various violent incidents that had occurred in Nigeria (see [12] of the decision).

24.More relevantly, by a further letter dated 16 August 2022 by his lawyer from DLS, the Applicant submitted the following additional information, as recorded in [13] of the Director’s decision:

“In the Additional Information submitted by the DLS on 16 August 2022, while legally represented, you claimed that:-

(a) You are in fear of being ill-treated or even killed by your enemies i.e. Ben, Nigerian-based Islamic terrorist group Boko Haram and the Nigerian government if you return to your home country, Nigeria;

(b) You are still under threat from Ben due to the ongoing land dispute …

(c) You are a man from Biafra southeast Nigeria with Igbo heritage, southeast Nigeria. The Igbo nationalist movement Indigenous People of Biafra (‘IPOB’) is considered as a secession and separation organization in the eyes of the current Nigerian government. The leader if IPOB Mazi Nhamdi Kanu was abducted in Kenya recently by the agents of the Nigerian National Intelligence and taken back to Nigeria for detention and a possible trial. These developments of the political situation has led to socio-political instability, mayhem and massacre. The government went to the court recently to proscribe IPOB and it has been listed as a terrorist organization. You believe it is a means of legitimating their recent military operations against the Igbo people. Instead of tackling the terrorist activities of Boko Haram, the Nigerian authority is sending troops to the Southeast of Nigeria to persecute peaceful campaigners of IPOB. You have been an IPOB member since 2018. Therefore, you have a strong feeling that you would face significant dangers if you return to Nigeria;

(d) Since your arrival in Hong Kong in 2011, the situation of your country has been deteriorating day by day. The rampant activities of Islamic terrorist organizations, including the notorious ‘Boko Haram’, give rise to the current predicament. The inaction and incompetence of the Nigerian government and its security architecture are the main reasons of all problems. Muslim militants from the North abducted young girls and slaughtered men of the Christian communities of the Southern states. As a devoted Christian from the South East of Nigeria, your personal safety is always in jeopardy and it is in all likelihood that you would be killed in those daily violence and military conflicts;

(e) Since the triumph in the 2015 general election, the current president of Nigeria, Muhammadu Buhari, who is a Muslim, has been adopting an appeasement policy in handling the menaces caused by Boko Haram and other Islamic guerrillas. He allows the occurrence of terrorism in every region of Nigeria. The current deplorable situation of in Northern, Southern and Eastern regions of the country is undoubtedly worrying. Schools are suspended in several areas and there are demonstrations in major cities because of the tyranny of the current government;

(f) President Muhammadu Buhari is a Muslim and he shows his reluctance in eradicating those Islamic terrorism within the country. It is widely believed that it is his deliberation to encourage the growth of Islam within the country. Those terrorists could possibly be a main force in fighting against the Christian separationists including the IPOB. His ultimate goal is the total Islamization of Nigeria. In addition, the authorities are setting prisoners free almost every day and those prisoners have become some local thugs in causing daily harassment to civilians and social unrest. There was an attack at Kuje prison (Kuje Medium Custodial Centre) in Abuja on or about 6 July 2022 and many Boko Haram militants escaped. During the event, all prison guards were told by their commanders to evacuate. As a result, the security level of the prison dropped significantly and inmates were managed to escape. There are reports that members of ISWAP are the culprits;

(g) The general election is going to take place in 2023 and you anticipate violence between the two main political parties APC and PDP. Due to the incompetence of Nigerian security architecture and government, civilians are being exposed with no protection at all and are caught in crossfire almost every day and significant number of casualties are recorded. It is too easy for people to procure firearms. It is undoubtedly a dangerous time for you to return to Nigeria as it is likely that you would fall victim to daily relentless and endless violence in Nigeria;

(h) On a separate note, the Islamic APC will win the election. You believe the election would be a corrupt one as the APC government would send people from Niger to vote for APC. The chance of victory of the Christian PDP is minimal. Even if the candidate of PDP does triumph in the election, he will not be endorsed by the Muslim population due to the constitutional restriction; and

(i) You did not state in your letter of 15 July 2022 the matter of the Nigerian government against the IPOB and your involvement with the IPOB.  You did not mention these matters in the latter because you thought that the letter was to be a summary only and the ImmD would interview you to investigate your Request.”  

25.On 25 August 2022 the Applicant through his lawyer submitted a receipt as proof of his membership of the IPOB in support of his request.

26.Upon receiving all the materials from the Applicant, the immigration officer proceeded to consider and evaluate his request to make a subsequent claim without any screening interview, and leaving aside the Applicant’s claimed risk of harm from his uncle Ben over their family disputes which the Director was in my view correct to find as the same as in his previous claim with no significant change of circumstances, I propose to just focus on the assessments of the Applicant’s proposed subsequent claim based on risks of religious persecution by anti-Christians Islamic terrorist groups for being a Christian, and of political persecution by the Nigerian government due to his Igbo ethnicity and membership of IPOB, as stated in the decision as follows:

“17. Regarding your fear mentioned in paragraph 15(b) above, you stated that Islamic terrorist organizations, including Boko Haram, are causing security predicament in Nigeria. Your personal safety is always in jeopardy as a devoted Christian from the South East of Nigeria. However, there is no credible evidence to show that you will be personally targeted. There is no indication that you had experienced any harm from any of the Islamic terrorist organizations in Nigeria. There is also no indication that you had ever faced any problems because of your Christian faith when you were in Nigeria. It is merely your own speculation that you will be killed in the daily violence and military conflicts. Therefore, it is not accepted that your fear from the Nigerian-based Islamic terrorist organizations, including Boko Haram, constitutes a significant change of circumstances which would give the subsequent claim a realistic prospect of success.

18. Regarding your fear mentioned in paragraph 15(c) above, you claimed that you had been a member of IPOB since 2018. You also claimed that the Nigerian authority is targeting IPOB, so you fear that you will face significant danger if you return to Nigeria. You submitted Document 9, which is a receipt purportedly issued by IPOB (Hong Kong Branch), to support your Request. The receipt, even if it is true, at most prove that you had paid the Hong Kong branch of IPOB but it does not indicate your role in IPOB. Even if it is accepted that you are a member of IPOB, there is no indication that you play any prominent role in that organization. It is merely your own speculation without credible basis that you will be ill-treated or even killed by the Nigerian government. Therefore, it is not accepted that your fear from the Nigerian government constitutes a significant change of circumstances which would give the subsequent claim a realistic prospect of success.

19. Regarding your fear mentioned in paragraph 15(d) above, you asserted that the current president of Nigeria allows the occurrence of terrorism in every region of Nigeria and the authorities are setting prisoners free almost every day. The security situation in Nigeria is unsatisfactory. Your life will be at risk because of the violence and conflicts in Nigeria, as well as the lack of protection from Nigerian authorities. You submitted Documents 1 to 8 (collectively “Documents”) to support the your Request (see paragraph 12 above). While some of the Documents may corroborate your assertion of unsatisfying human rights and security situation in Nigeria, it appears that they do not contain information material to your specific case showing that you will be personally at risk. It is considered that the existence of human rights abuse in a country does not in itself constitute a sufficient ground for determining that a particular person will be in danger of being subjected to harm or ill-treatment upon one’s return to that country, not to mention that the state protection exercised by the Nigerian government has been dealt with in your previous claim. The case officer considered it was merely your speculation that you would be unable to seek protection from the police or redress from the judicial system in Nigeria (see paragraph 10(b) above). The Board found no substantial ground to believe that you would face a future risk of serious harm. The COI showed reasonable availability of state protection from such harm (see paragraph 10(h) above). There is nothing in the context of the aforesaid Documents to show or support that you will face a foreseeable, real and personal risk of serious harm or ill-treatment if returning to Nigeria. Thus, it is assessed that the Documents cannot advance your request any further, and it is not accepted that your intended subsequent claim would have any realistic prospect of success.”

27.Based on these findings the immigration officer concluded that there has not been any significant change of circumstances since the Applicant’s previous claim was finally determined, or that such change, if any, when taken together with the materials previously submitted in support of his previous claim, would not give his subsequent claim a realistic prospect of success, and therefore refused the Applicant’s request to make a subsequent claim for non-refoulement protection under the USM.

28.It is against these reasons of the Director to refuse his request that the Applicant put forward his 2 grounds for his intended challenge, and for which Mr Kwok submits that the Director failed to discharge his investigative duty to consider the materials submitted in support of the Applicant’s subsequent claim with anxious scrutiny and to ensure that the assessment is a full and up-to-date one of the current situations with respect to religious and political persecutions, that which are further exacerbated by the deteriorating security conditions in Nigeria, and that the Director also failed to give any or adequate reasons for his refusal of the Applicant’s request.

29.It is clear from the Applicant’s case that his claimed fear of harm as a result of such changes of situation in Nigeria since the determination of his previous claim, and for that matter since his departure of the country in 2011, is 2-fold based on the facts of him being a Christian and hence his fear of religious persecution by anti-Christian terrorist groups currently very active in Nigeria such as Boko Haram, and as an ethnic Igbo and a member of their separatist movement IPOB that he also fears political persecution by the Nigerian government due to their increasing military actions against IPOB activists.  Given that his such personal status which had in fact already been disclosed in his previous claim (see [6.2] of the Director’s decision dated 27 November 2015 on his previous claim) and with which the immigration officer did not appear to take any issue, or of his alleged membership of IPOB, in the consideration of his request to make his such subsequent claim, and in also accepting that the materials submitted by him may corroborate his assertions of unsatisfying human rights and security situation in Nigeria which may exacerbate his fears, it seems to me reasonably arguable that in refusing his request to make a subsequent claim based on such risks, the immigration officer:

(a)  failed to properly or adequately consider and assess the materials available before the Director as well as the relevant COI in relation to the current situations regarding the persecutions of Christians and ethnic Igbo and/or members of IPOB in Nigeria in the assessment of the Applicant’s proposed subsequent claim;

(b)  erred in law in relying solely on the absence of past harm to the Applicant of either risk to dispel concerns of future risks to him upon his return to Nigeria as his mere speculations;

(c)  erred in relying on the finding by the Board of state protection being available to the Applicant in his previous claim which was based on risk arising from a private family dispute without official involvement and wholly different in terms of the level and severity of risks from religious and political persecutions as asserted in his subsequent claim; and

(d)  failed to give proper or sufficient reasons for finding no significant change of circumstances since the Applicant’s previous claim had been determined notwithstanding the materials and/or relevant COI submitted by him in support thereof and/or may corroborate his such fear and/or exacerbate such risks as asserted for his subsequent claim.

30.In the premises, and for the reasons given, I am of the view that the Applicant’s intended application for judicial review of the Director’s decision in refusing to allow him to make a subsequent claim is reasonably arguable based on his proposed grounds, and thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

31.Accordingly I grant an extension of time to the late application of the Applicant and with leave to apply for judicial review of the Director’s decision, and direct that he shall file and issue the originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Director as the respondent.  

Dated the 30^th day of April 2024

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