Ejiobu Lazarus v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 576/2020

[2025] HKCFI 4365

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 576 of 2020

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 from the Applicant in open court;

Order by Deputy High Court Judge (Non-refoulement Claims) YW Hew:

1.  The Form 86 be amended on the Court’s own motion, naming only the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office as the Putative Respondent, naming only the Director of Immigration as the Putative Interested Party, and stating “Decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office dated 14 February 2018” in place of “14-September 2016”; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.The Applicant is a national of Nigeria. By a Form 86 dated and filed on 9 April 2020 (“Form 86”), which was accompanied by an supporting affidavit also dated and filed on 9 April 2020 (“the Affidavit”), the Applicant sought leave to commence a judicial review of a decision which was said to be dated 14 September 2016.

2.There was however no decision of such date, or any decision exhibited to the Affidavit, and the relevant decision that relates to the Applicant is one of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) dated 14 February 2018 (“the TCAB Decision”)[1].

3.For reasons which I explain in the Background section below, I have of my own motion amended the Form 86 as above to reflect the date of the relevant decision, and the relevant roles of the TCAB/NRCPO and the Director.

Background

4.The background to the Applicant’s non-refoulement claim and its assessment below is set out in the TCAB Decision. I will not repeat the contents thereof, but in summary:

(1)  The Applicant claimed non-refoulement relief on the basis that if he were sent back to Nigeria, he would be harmed or killed by people from the UAC, and the Umudi communities;

(2)  The claim was assessed on the grounds of Torture Risk[2], BOR 2 Risk[3], BOR 3 Risk[4], and Persecution Risk[5] and was rejected by the Director of Immigration (“Director”) in a decision dated 24 November 2016 (“Director’s Decision”), which was exhibited to the Affidavit;

(3)  The Applicant then filed a Notice of Appeal/Petition to the TCAB/NRCPO (“Notice of Appeal”);

(4)  The TCAB/NRCPO held a hearing on 4 January 2018 at which the Applicant gave evidence; and

(5)  The TCAB/NRCPO issued the TCAB Decision on 14 February 2018 in which it found that the Applicant was not entitled to non-refoulement relief on any of the grounds under the USM, refused the Appeal, and confirmed the Director’s Decision.

5.At the oral hearing of the application on 2 June 2025, and in the process of my clarifying whether he sought leave to apply for judicial review of the TCAB Decision, the Applicant claimed that he had not seen the TCAB Decision prior to the hearing. He said, rather, that (i) He had only learnt in around March or April 2020 (when he went to sign in with staff of the Director at Castle Peak Bay Immigration Centre (“CIC”)) that his case had been finished and he should be prepared to go back, and that if he did not want to leave Hong Kong he should apply go to the High Court to apply for judicial review (ii) He then searched around for direction and was told, by a member of the church that he attends in Hong Kong, that he should apply for judicial review (iii) Accordingly he had filed the application for leave without further guidance or the assistance of an interpreter, and without a copy of the TCAB Decision.

6.The letter dated 14 February 2018 notifying the Applicant of the TCAB Decision (“TCAB Letter”) had been addressed to a “Flat 1” of a certain address and (as I mentioned to the Applicant) there was nothing to indicate that the TCAB Letter had been returned undelivered. However, the Applicant told me that he had resided at “Flat I” of the relevant address at the time (which flat had a letterbox), and that his address in the Form 86 also referred to “Flat I” (although I also consider, as I mentioned at the hearing, that the handwriting in the latter could equally be construed as “Flat 1”). He said it was possible that someone might have taken the TCAB Letter or that it had gone to a wrong address given that it had been addressed to “Flat 1” (although he admitted that he did not know whether there was a “Flat 1” where he had lived) and that if he had known about the TCAB Decision earlier he would have applied earlier and not wasted time.

7.The Applicant then stated that he wanted to apply for judicial review of the TCAB Decision, and that he wished to file some documents explaining the question of delay in filing the judicial review, and “to show the reason why my life is still in danger, I cannot go back to my country now, for now. Because the situation in my country now is worse, bad things are happening there, so I’m still afraid to go back”.

8.I therefore amended the Form 86 to reflect the date and role of the TCAB in making the TCAB Decision, and gave the Applicant 14 days until 16 June 2025 (which timeframe he said was acceptable) to file evidence explaining, and exhibiting all documents relevant to, the delay in filing his application for judicial review, and dealing with any matters arising from the amendment. I also adjourned the hearing to 20 June 2025 so that I could be addressed on the documents exhibited.

9.The Applicant eventually did not file, but instead submitted, certain documents on 16 June 2025. These comprised a letter (“Applicant’s Letter”) containing certain claims, to which the Applicant had attached an amended Form 86[6], an amended but unsworn Affidavit (“2^nd Affidavit”), and certain documents that the Applicant intended to rely on (“Additional Documents”). At the resumed hearing he affirmed portions of the Applicant’s Letter and the contents of the 2^nd Affidavit, and made submissions (both orally and as set out in other portions of the Applicant’s Letter) as to the reason for delay, and as to the relevance, admissibility, and weight of all matters including the Additional Documents. I explain my conclusions on these matters below.

Legal Principles

10.An applicant, even one acting in person, is required to identify the grounds of judicial review clearly and succinctly in the Form 86, and to fully and frankly disclose all material facts and potential legal answers (Ho Loy & Another v Director of Environmental Protection, unrep. HCAL 21/2015, 22 December 2016, Chow J. (as he was then) at §142; Leung Kwok Hung, unrep., HCAL 83/2012, 28 September 2013, Lam J. (as he was then) at §35; Begum Khadija [2018] HKCA 571; Khan Kamran [2020] HKCA 380).

11.It is trite that the role of the Court in a judicial review is not to provide a further avenue of appeal, and that the Court should not usurp the role of the TCAB/NRCPO which is (and together with the Director are) the primary decision‑makers. The assessment of evidence, COI materials, and credibility, risk of harm, state protection and viability of internal relocation are primarily within the province of the TCAB/NRCPO and the Director, which are entitled to make evaluations based on the evidence available and to decide the weight to be given to them. While the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB/NRCPO (Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Nupur Mst v Director of Immigration [2018] HKCA 524; Re Kartini [2019] HKCA 1022; Re Rupinder Singh [2021] HKCA 886).

12.In order for me to give leave for judicial review, I have to be satisfied that there is an intended ground of review which is reasonably arguable, which is one that enjoys a realistic prospect of success (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676). As a leave application of this sort is meant to be a filtering process, I am not expected to give elaborate reasons for my decision (see Re Zunariyah [2018] HKCA 14, at §23).

13.Given RHC O. 53 r. 4(1) and s. 21K(6) High Court Ordinance (CAP. 4A), where an Applicant applies for leave to apply for judicial review more than 3 months after the decision:

(1)  The failure to apply within 3 months constitutes “undue delay”. To justify an extension of time in which to apply for leave, the Applicant must show “good reason” to extend time. In deciding this, certain factors that are likely to be significant are (i) the length of the delay (ii) the explanation for the delay[7] (iii) the merits of the substantive application[8] (iv) prejudice, and (v) whether the application raises questions of general public importance;

(2)  Where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review. The refusal of an extension of time is part and parcel of a refusal to grant leave to apply. It is not the case that the court refuses the extension of time as a discrete decision and then makes no decision on the question of leave to apply for judicial review, treating this as a separate matter entirely;

(3)  If the court is satisfied that there is good reason for extending the period, it does not follow that leave to apply for judicial review will automatically be given. While the court might grant leave, it retains a discretion to refuse to do so and the existence of a good reason for undue delay is only one facet of the question, others including sufficiency of interest and the need to satisfy the arguability test. Leave may also be refused on the basis that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration; and

(4)  Even if leave to apply is granted, the issue of undue delay on the part of the applicant may be raised again at the substantive hearing of the judicial review application. That is a separate consideration of whether relief should be refused on the basis that the court thinks that relief would be likely to cause substantial hardship or prejudice to the rights of another or be detrimental to good administration.

See AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) (at §§23 to 36), Thomas Lai [2014] 6 HKC 1 (at §§43 to 45 as also cited in AW, supra), and H v Director of Immigration (2020) 23 HKCFAR 248 at §§17-22, 36-44 citing inter alia both AW and Thomas Lai. See also Re Hariatiningsih [2021] HKCFI 1194 at §§12-13, 16-19 citing the aforesaid, upheld in [2022] HKCA 1321.

Discussion

14.The application was filed on 9 April 2020, over 22 months after the TCAB Decision. I do not see any good reason on the papers, and in the circumstances, to extend time for the Applicant’s application for leave to apply for judicial review. I therefore refuse to grant such an extension of time, and I dismiss the application for leave to apply for judicial review. This is for the following reasons.

15.Dealing, firstly, with the merits of the substantive application, the Applicant had not identified or set out any grounds of judicial review in the Form 86[9] or in his Affidavit. There was hence no allegation of any procedural unfairness in relation to, of any error of law in, and/or of any irrationality/failure to meet the enhanced Wednesbury test in, the TCAB Decision. However, the Affidavit said that he was afraid to go back as “my life is not safe those after me is more stronger”, and as I have mentioned, at the resumed oral hearing the Applicant affirmed the contents of his 2^nd Affidavit which were that his life was still in danger and that he was afraid to return to Nigeria as members of UAC are after his life. In his submissions he:

(1)  Asked me (via the Applicant’s Letter) to “review his case properly” as he did not agree with the Director’s Decision and the TCAB Decision “because their [COI] for deciding my case was misleading”. He orally elaborated at the resumed hearing that the Nigerian COI relied on was “misleading in the sense that only the Muslims are the journalists, and I am a Christian. So the [Immigration Department] relied on COI which was written by Muslims” (“the COI Allegation”); and

(2)  The situation in his country was worsening and the authorities of Nigeria could not protect him, while internal relocation was not possible as suggested, and the Additional Documents were relevant as:

i.  New autonomous regions continued to be created, and the issues caused by such were the reason he had run away from Nigeria (“Threat Argument”); and

ii.  His country was not safe for him as the authorities could not protect him, as the government was not protecting citizens but was killing them. Also, given his age and family he should be taking care of his children in Nigeria, but he could not do so due to the lack of protection, and as general insecurity in the country meant he could not relocate to any part of the country (“Protection Argument”).

(The Threat Argument and the Protection Argument are, collectively, referred to as the “Further Arguments”).

16.The Applicant also submitted (apparently both in relation to the question of merits and delay) that I should to have regard to the contents of a letter from the church that he attended in Hong Kong (“Church Letter”) (which is signed by another person who is a pastor of that church), and to believe what he said, as he was a pastor and would not come to court to give false evidence.

17.I have hence considered the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard and bearing in mind the need for a high standard of fairness.

18.The TCAB/NRCPO set out the Applicant’s immigration and procedural history, as well as a summary of the Applicant’s claim and documents within which it was contained (Paragraphs 1 to 7). This was followed by the details of his non-refoulement claim as made to the Director (Paragraphs 8 to 26) and then to the TCAB/NRCPO including his evidence at the hearing before the decision-maker (Paragraphs 27 to 36).

19.Paragraphs 37 to 49 contain the decision-maker’s assessment of and conclusions as to the evidence, credibility, and risk of harm. She gave clear and detailed reasons for such with reference to the evidence before her (including on salient matters such as the status and activities of the Applicant’s family in Nigeria), and the contents of relevant COI (including consideration of what she had found, as well as and the Applicant’s comments thereon). In particular, while she accepted that the issue of independence was contentious, that there were some confrontations, and that the Applicant may have been threatened at some point and feared for his safety, she:

(1)  Considered that the Applicant’s claims regarding the assault on him (including his claim that he had been assaulted and escaped from 8 to 10 men), and the level of interest shown to him by members of the UAC and Umudi communities, were not credible, and did not accept that he had been pursued from Nkwerre state to his wife’s home in Abia state;

(2)  Did not accept that the Applicant’s evidence indicated he was anything other than one of many persons who were involved in promoting independence of the community;

(3)  Did not accept that the Applicant had satisfactorily explained that he had such a key role in promoting independence such that he was sought and targeted, while other key members were able to remain living in Nigeria and did not need to flee to escape harm;

(4)  Did not accept that the Applicant’s role was of such importance such that he was pursued relentlessly throughout Nigeria such that he needed to flee the country for the safety of Hong Kong;

(5)  In relation to her conclusion that the Applicant’s claims that he would be of continued interest to persons from the Umudi or UAC upon his return to Nigeria lacked credibility, had regard in particular to:

i.  The evidence before her and relevant findings she made as to the Applicant’s family’s life and business in Abia; and

ii.  The COI (and the Applicant’s submissions thereon) which lacked reports of ongoing disputes or retaliation against persons involved in the independence of the relevant autonomous communities;

(6)  Did not accept that it was in any way credible that the Applicant would be pursued almost 10 years later for his role in promoting independence for his community, or that any persons from the Umudi or UAC had shown any interested in locating him or would pursue him as a result of such involvement;

(7)  Did not accept the reasons the Applicant gave for having departed Nigeria in a passport which was not of his own name, that he was actively pursued by persons from opposing autonomous communities to the extent claimed, or that his father was poisoned in 1997 due to the Applicant’s due to advocating independence; and

(8)  Did not accept that there was a real risk, a real chance, or substantial grounds for believing that the Applicant would be harmed by members of opposing autonomous communities if he were to return to his home area, or to live with his wife and children in Abia state.

20.The TCAB/NRCPO then turned to each type of risk and found that none of them were established. In doing so she referred to her earlier conclusions in relation to the evidence, such as the lack of evidence of ongoing dispute or retaliation, that the Applicant’s claims that he had been attacked or pursued throughout Nigeria were not truthful, and as to the lack of any real risk, chance, or substantial grounds for the relevant type of harm. As the Applicant was not entitled to non-refoulement protection on any of the grounds under the USM, the appeal/petition was refused and the Director’s Decision was confirmed (Paragraphs 50 to 70).

21.I do not see that the Applicant has any reasonably arguable case that there was procedural unfairness (bearing in mind the need for a high standard of fairness), an error of law, and/or irrationality/failure to meet the enhanced Wednesbury test that is sufficient to vitiate the TCAB Decision. This is especially so as to the assessment, reasoning, and findings regarding the Applicant’s credibility, evidence, and risk of harm, which are all matters primarily within the province of the decision-making body, and as to Torture Risk, Persecution Risk, BOR 3 Risk, and BOR 2 Risk. Nor, for reasons below, is the Applicant’s leave application assisted by the COI Allegation or the Further Arguments.

22.As to the COI Allegation, the Applicant has failed to explain and identify which of the COI mentioned by the Director and/or the TCAB/NRCPO were allegedly “misleading” due to their alleged authorship, and how such were “misleading”, let alone how those matters had affected/tainted the TCAB/NRCPO’s determination of his appeal/petition. Nor do I see (i) Any basis to suggest that the COI Allegation has been established in relation to any or all of the COI referred to by the Director and/or the TCAB/NRCPO; or (ii) Any reasonable argument that the TCAB/NRCPO committed a public law error in relation to its treatment and consideration of COI in the TCAB Decision, let alone one that vitiates the conclusions in the latter and would justify the grant of leave.

23.In relation to the Further Arguments and the claims as made in the Applicant’s two Affidavits:

(1)  There were three Additional Documents, all being printouts of reports from websites, including one claiming to be an online newspaper[10]. However, I am not satisfied that they meet the second condition in Ladd v Marshall [1954] 1 WLR 1489 (namely that they would probably have an important although not decisive influence on the result of the case), and in particular I do not see that the TCAB/NRCPO’s approach and findings as to credibility, evidence, and risk of harm would have been affected by them. In relation to the Threat Argument, none of the alleged issues apparently reported on relate to the Applicant, his community and its independence, or any risk of harm or killings relevant to such (including from the UAC or Umudi communities), and I do not see that their contents would have affected the TCAB/NRCPO’s careful reasoning and conclusions at Paragraphs 37 to 49 of the TCAB Decision. I also do not see how the Additional Documents establish the Protection Argument in any way or would have affected the TCAB/NRCPO’s aforesaid approach and findings. I hence reject and disregard all of the Additional Documents as they are inadmissible.

(2)  Given the findings in and my analysis of the TCAB Decision, and the purpose of judicial review proceedings[11], I also do not see how the bare and unsubstantiated allegations advanced by the Further Arguments, the Affidavit, and the 2^nd Affidavit are relevant to or assist his leave application. If he intends to claim that there has in fact been a significant change of circumstances or new information relevant to his non-refoulement claim, that may be relevant to the procedure in ss. 37ZO and 37ZP Immigration Ordinance (Cap 115). But it is not relevant to the present application (Amandeep Kumar v Torture Claims Appeal Board [2019] HKCA 1369 at §13; Poinem v Torture Claims Appeal Board [2020] HKCA 911 at §15).

24.I also consider the Church Letter inadmissible in relation to the merits of the leave application as it merely establishes, at best, that the Applicant has attended and assisted with the religious activities of a church in Hong Kong, and I do not see that it satisfies the second condition of Ladd v Marshall, supra. While I do not accept the Applicant’s bare allegation that he was a pastor of some sort in Nigeria, or that he had “maintained” such status in Hong Kong[12], in any event I do not see how his church attendance and such alleged status as a pastor are relevant to or assist the COI Allegation, the Further Arguments, or the substantive merits of his leave application. A fortiori given the conclusions, including as to credibility, evidence, and risk of harm, in the TCAB Decision.

25.There is hence no basis for the court to intervene by way of judicial review, and I am not satisfied that there are any reasonably arguable grounds for judicial review which enjoy a realistic prospect of success.

26.Secondly, it is relevant that there is undue delay in this case as the leave application was filed over 22 months after the TCAB Decision, and over 19 months out of time. In that regard:

(1)  The Applicant’s explanation for the delay in his 2^nd Affidavit was essentially because the TCAB Letter had wrongly addressed to “Flat 1” of the relevant address rather than “Flat I” of the same, hence he did not receive it and had only learnt about it via his monthly signing at CIC. I have considered those alongside his other submissions as to delay, and the matters set out, at Paragraphs 5 and 6 above, as well as the fact that the handwritten address in his Notice of Appeal/Petition is consistent with a reference to “Flat I” of that address.

(2)  On balance, and taking into account all of the matters before me, I do not accept that I have been given an acceptable explanation for the delay, given in particular the following:

i.  The relatively minor nature of the error in the address set out in the TCAB Letter, which otherwise contained the correct particulars;

ii.  That there was no indication that the TCAB Letter was returned undelivered, or any credible and objective evidence from which I can reasonably infer (rather than speculate) that it was misdelivered and/or that someone else took the letter. While the Applicant admitted there was a “Flat I” letterbox, there is nothing to indicate that there was in fact a “Flat 1” where he had lived at the time (and it is in any event inherently improbable that there would be both a “Flat 1” and “Flat I” at the same address), nor any evidence to suggest that or why it would have been placed in some other letterbox and/or that or why someone else would have taken the letter; and

iii.  In any case, based on the reporting requirements in the Applicant’s Form 8 the Applicant would have learnt from the staff of the Director about the TCAB Decision on 30 March 2020, and there is no acceptable evidence or explanation before me as to why he then took another 11 days to file his leave application, during which time he apparently failed to even try and obtain a copy of the TCAB Decision.

I do not see that the contents of the Church Letter affect the aforesaid analysis.

(3)  In my view, the lack of an acceptable explanation for this undue delay justifies the refusal of leave, however strong the complaint might otherwise be. At the very least, there is also an absence of an acceptable explanation for the further delay from 30 March 2020. With that said, even if I had considered there to be an acceptable explanation for the delay, whatever its length, I would still exercise my discretion not to extend leave, given the other matters herein.

27.Thirdly, I do not see any question of general public importance raised by the application which is likely to be resolved by the courts in any event. Given the lack of any reasonably arguable grounds, I also see no prejudice to the Applicant if the application were not allowed to proceed, whereas allowing it to proceed would clearly be to the detriment of public administration and would needlessly prejudice the putative Respondent.

Conclusion

28.In the circumstances, I dismiss the application for leave for judicial review and have made the orders set out above.

Dated the 6^th day of October 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