Obiakor Onyeka Kingsley v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1974/2025

[2025] HKCFI 4632

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1974 of 2025

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 Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

1.  The extension of time for the application for Judicial Review be refused; and

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

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 31 December 2024 of the Torture Claims Appeal Board (“the Board’s Decision”). His application is late. His application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 31 March 2025. His application was filed on 2 September 2025, which is late for more than 5 months. This issue will be dealt with below.

2.The applicant did not ask for a hearing.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of Nigeria. He is an illegal immigrant for the reason that he came to Hong Kong as a visitor on 16 September 2023, but overstayed since 17 September 2023. He surrendered to the Immigration Department lodged a non‑refoulement claim on the basis that, if refouled, he will be harmed or killed by Ebubeagu (“the enemy”), a vigilante group in Anambra State because he disobeyed the order made by Joan Ugwu, a local commander, to kill a person.

5.Details of the applicant’s story can be found in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001974_2025_files/the_Board's_Decision.pdf.

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.The Director, by Notice of Decision dated 8 May 2024, (“the Director’s Decision”), refused the applicant’s claim for the reason that it was unsubstantiated.

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. The Board conducted an oral hearing via Remote Official Visit System because he was serving a custodial sentence. He had given oral evidence and answered the Board’s questions.

9.Having considered the evidence and materials, the Board found the facts below.

(1)  The applicant had not provided any evidence to support his claim. [36], [58] & [59]

(2)  The alleged risk is not imminent or real. [37]

(3)  The ill-treatment, as alleged, had not attained a minimum level of severity. Further, it was a private dispute without any involvement of the state. [38] & [54]

(4)  State protection would be available. [62]

(5)  Internal relocation is viable. [89]-[95]

10.For the reasons above, the Board dismissed the applicant’s appeal and affirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

11.The applicant has filed Form 86 dated 2 September 2025 for leave to apply for judicial review of the Board’s Decision

12.In support of his application, the applicant had submitted a statement, in which he reiterated his story given to the Board. He further said that there were over 1500 people had been kidnapped or killed by the Nigerian government. He is therefore worried that if he returns to Nigeria, he will be killed as well.

DISCUSSION

13.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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 Board.”

16.The reasons under paragraph 12 are not valid to challenge the Board’s Decision. First of all, the Board did not believe the facts he had raised before it. Those reasons cannot alter the Board’s finding of the facts. The allegation that the Nigeria government had killed or kidnapped many people, even if true, will not advance his claim because there is no evidence that the risks are personal to him.[2]

17.In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

18.I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 16^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