Okpara Kenneth Ikechukwu v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2348/2019

[2025] HKCFI 1289

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2348 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;

Order by Deputy High Court Judge To:

1.  Extension of time to file the application for leave to apply for Judicial Review (“Form 86”) 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 14 August 2019 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 28 December 2016 (the “1^st Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 6 August 2015 (the “1^st Notice”), refusing his application for non-refoulement protection under all three available grounds under the Unified Screening Mechanism (the “USM”), ie Torture Risk[1]; BOR 3 Risk[2]; and Persecution Risk[3] grounds.

Background

2.The Applicant is a Nigerian national, now aged 56. He last entered Hong Kong on 26 January 2012 as a visitor. He overstayed since 17 February 2012. He was arrested by the police for overstaying on 15 March 2012 and was referred to the Immigration Department. He subsequently made a non-refoulement claim on 28 March 2012. In due course, his claim was assessed on all three applicable grounds then available under the USM. His claim was rejected by the Director’s 1^st Decision. His appeal against the 1^st Notice was dismissed by the Board’s 1^st Decision. He is now applying for judicial review of that 1^st Decision.

3.On 15 March 2017, the Applicant was invited by the Department to submit additional facts, if any, which he considered relevant to his non-refoulement claim on all applicable grounds including that under BOR 2 Risk[4] ground within 14 days. He did not respond. His claim was rejected by the Director’s Further Notice of Decision dated 3 April 2017 (the “2017 Notice”). Despite the express warning in the 2017 Notice that any appeal must be lodged within 14 days from the date of that Notice, he filed the Notice of Appeal on 9 May 2017 which was 19 days out of time. By its Decision dated 25 July 2019 (the “2^nd Decision”), the Board refused to accept his late filing for appeal. He has not sought to apply for judicial review of the 2^nd Decision.

4.The leave application was filed 31 months and 17 days after the date of the 1^st Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was lodged 28 months and 17 days out of time. Extension of time to apply is required.

5.In AW and Director of Immigration and William Lam[5], 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 grant of extension, the court could be more relaxed in the remaining two. Conversely, if it is against the grant 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[6], per Litton PJ. The delay in this case is so substantial that leave may be refused on this ground alone without considering the merits of the substantive application, unless the Applicant has a reasonable and credible explanation for the delay.

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 neither. At the hearing, after the chronology of the events leading to the Applicant’s leave application had been explained to him, the Court attempted to explore the reasons for delay with the Applicant. He said he had never received the Decision and was only informed of it by an immigration officer upon his regular reporting of his recognizance five years ago. He could not have a precise recollection. He said it was about five years ago. That would be about the time he filed his leave application. Effectively, he was saying that he filed the leave application shortly after he was alerted by the officer five years ago.

7.The Applicant’s explanation is a bare assertion unsupported by any credible reason or evidence. According to his Recognisance Form (Form No. 8), he had to report his recognizance once every two weeks. Between the date of the Decision, which is also the date of posting of the Decision and the date of his filing of the leave application, there was a huge gap of thirty-one and half months. The Applicant would have reported 63 times. Refoulement of claimants not eligible to protection is undoubtedly on the top of the Immigration Department’s priority list. The Applicant’s story that all of a sudden an immigration officer alerted him of the outcome of his appeal after 63 reporting just begs belief. As against his story, the delivery service of Hong Kong Post is usually very reliable. The documents discovered from the secretariat of the Board show that the Decision had been sent to the Applicant by post to his correct address, which is also his current address. When the Applicant’s explanation is tested against the incontrovertible documents from the Board, this Court found his story incredible. It is unable to accept his assertion. The Applicant has no explanation for a very substantial delay of more than twenty-eight and half months’ delay.

8.The Applicant could not give a reasonable explanation for the very substantial delay. His conduct evinced a lack of intention to prosecute his leave application. It also reflects a lack of underlying merits in his leave application and non-refoulement claim and an absence of a genuine fear of harm from any of the proscribed risks. His conduct resulted in delay in the processing of his leave application and his non‑refoulement process. His conduct is a clear abuse of legal process. The delay is so inordinate as to be beyond the limit which any court could indulge. For these reasons, there is no need to consider the merits of his leave application. Extension of time to file the leave application is therefore refused. His leave application is also dismissed for want of prosecution. Having perused the Decisions and the papers, this Court can detect no errors of law, procedural unfairness or irrationality in the 1^st Decision.

Conclusion

9.For the above reasons, extension of time to apply for leave to apply for judicial review and the leave application are refused.

Dated the 3^rd day of April 2025

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