Obimka Kasmei Azubuike v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1151/2025

[2025] HKCFI 5804

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1151 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 30 October 2024 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.  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 30 January 2025. His application was filed on 19 May 2025, which is late for more than 3 months.  This issue will be dealt with below.

2.The applicant did not ask for a hearing.

The applicant                         

3.The applicant is a national of Nigeria. He is an illegal immigrant, having entered Hong Kong illegally by boat on 23 July 2023.  He was arrested.  He lodged a non-refoulement claim with the Director of Immigration (“the Director”) on the basis that, if refouled, he will be harmed or killed at the hands of the state authorities, because of his former membership of the Indigenous People of Biafra (“IPOB”).  In a rally in Nigeria, he was shot by police on his knee where he had to stay in hospital for 5 months.

4.Details of his claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001151_2025_files/the_Board's_Decision.pdf.

The Director’s Decision

5.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”).

6.By way of Notice of Decision dated 22 December 2023 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated.

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board.  On 5 June 2024, the Board conducted an oral hearing for his appeal.  He had given oral evidence and answered the Board’s questions.

8.Having considered the evidence, the Board made the findings below.

(1)  The greater part of his evidence consisted of vague, and broadly stated assertions of fact, which contained little realistic detail. [51]

(2)  His evidence relating to events and assertions of fact was not within his own knowledge. [53]

(3)  The Board was not persuaded that he was a member of the IPOB. [56]

(4)  The medical report the applicant submitted to prove his injury was not authentic or reliable. [63]

(5)  The Board therefore rejected his evidence and considered that he had fabricated his evidence. [65]-[66]

(6)  The Board found he will not be subjected to serious harm if he returns to Nigeria. [67]

9.For the reasons above, the Board dismissed his appeal and affirmed the Director’s Decision.

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

10.The applicant has filed Form 86 dated 19 May 2025 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, the applicant has not raised any specific ground to challenge the Board’s Decision.

DISCUSSION

12.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.

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

14.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.”

15.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

16.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 10^th day of December 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