Obijiaku Moses Chika v. Torture Claims Appeal Board

HCAL 290/2021

[2025] HKCFI 4604

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 290 OF 2021

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 the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 65-year-old national of Nigeria who last arrived in Hong Kong on 27 June 2015 as a visitor with permission to remain as such up to 11 July 2015 when he did not depart and instead overstayed, and more than 4 years later on 19 September  2019 he surrendered to the Immigration Department and raised a non‑refoulement claim for protection on the basis that if he returned to Nigeria he would be harmed or killed by the Nigerian authorities for having been involved with the separatist group Indigenous People Of Biafra (“IPOB”).  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born as an ethnic Igbo and raised in Osina Town, Ideato North, Imo State, Nigeria where his father was a soldier of the Republic of Biafra who fought and died in its fight for independence in the Nigerian civil war from 1967 to 1970 when the Biafran forces eventually surrendered to Nigeria.

3.After the war his mother raised the Applicant and his siblings by herself as a farm worker, and after leaving school the Applicant in 1981 started his own fish farm business in Onitsha, and in 1983 he started another business selling vehicle tyres, during which he would often take business trips to China purchasing goods for his businesses.

4.In 2012 he joined the Movement for the Actualization of the Sovereign State of Biafra (“MASSOB”) in protests against discriminations and oppressions by the Nigerian government against the Igbos people, during which he and his fellow Igbos were frequently shot at or arrested by the police for interrogations for days in detention.

5.Due to persisted mass arrests and violent suppressions by the Nigerian authorities, MASSOB subsequently became much weakened, and in 2014 the Applicant left to join IPOB without holding any official post and regularly attended their protests and rallies, but for which the Nigerian authorities took oppressing actions against him by restricting or banning the imports of vehicle tyres thereby affected his business and causing heavy financial losses to him.

6.One day in late May 2015 when he together with his fellow IPOB supporters were attending another protest in Aba, Abia State, the police and the military arrived to disperse the crowd by firing gun shots at them indiscriminately causing numerous injuries including the Applicant who suffered a head injury but managed to make his escape back to Lagos.    

7.Later when he heard that the Nigerian government were making mass arrests of the IPOB people, the Applicant became fearful for his life and so on 27 June 2015 he departed Nigeria for Hong Kong when he overstayed and subsequently some 4 years later in September 2019 raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 17 December 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 

8.While overstaying in Hong Kong the Applicant also joined the local IPOB group regularly attended their protests and rallies to seek international attention of the plight of the Igbo people in Nigeria, and for which he also feared of being arrested and prosecuted by the Nigerian authorities if refouled to Nigeria.              

9.By a Notice of Decision dated 6 March 2020 the Director of Immigration (“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”).

10.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by the Nigerian government upon his return to Nigeria in the absence of any reliable evidence of him ever being targeted by the Nigeria government for his alleged involvements in MASSOB or IPOB activities in Nigeria or Hong Kong other than his own bare assertions unsupported or corroborated by any evidence, that he was able to leave and return to Nigeria on numerous occasions over the years without any problem that it is not accepted that the Nigerian government would have any adverse interest in him, and that the credibility of his claim was further undermined by his failure to raise it upon first arriving in Hong Kong in 2015 until more than 4 years later in 2019 without any valid excuse or explanation, and that in any event relevant Country of Origin Information (“COI”) show that there are laws in Nigeria to protect the rights of the Applicant as a Nigerian citizen and entitled to due process and legal representation to defend any charges that may be brought against him for any past involvements in those separatist or secessionist groups for the Igbo people or the state of Biafra either in Nigeria or Hong Kong in a fair trial in a court of law that it is not accepted that he would face any risk under any of the applicable grounds.

11.On 19 March 2020 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 24 June 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 6 November 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

12.In its decision[1] the Board found material inconsistencies discrepancies and contradictions in the Applicant’s evidence that it doubted and rejected the credibility of his claim of fear of harm from the Nigerian authorities that caused him to leave his country to come to Hong Kong to seek protection in the absence of any reliable evidence of any of his claimed involvement in either MASSOB or IPOB that it is not accepted that he had ever held any position in IPOB in Nigeria or that he had ever been harmed or prosecuted by the police or authorities in Nigeria, and that it is not accepted that the Nigerian government or authorities would have any adverse interest in him given the fact that he had been able to leave and re-enter the country on numerous occasions over the years without ever being arrested or detained or interrogated by the police or securities that it is not satisfied that he would face any risk of being harmed or ill-treated by the Nigerian government if refouled to Nigeria that it concluded that his claim for non-refoulement protection failed on all applicable grounds.    

13.On 5 March 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date in which he just stated that he does not agree with the decision but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.      

14.By then the Applicant was also 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 day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

15.As the last day of the three-month period for him to file his Form 86 fell on 6 February 2021, the Applicant was therefore 1 month 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 1 month must be considered as substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, and as the record shows that the decision was sent on the same day of 6 November 2020 to his then reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay.      

17.As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forward any proper ground for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

18.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

19.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

20.Having thus considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

21.Moreover, the Applicant has recently filed an affirmation requesting to withdraw his application albeit without any providing any further details or explanation for his request.

22.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay but given his latest confirmation to withdraw his application, I accordingly dismiss his leave application.

Dated the 10^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