Abayomi Bamidele Fayomi v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 402/2022

[2026] HKCFI 1219

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 402 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

Order by Deputy High Court Judge (Non-refoulement Claims) Sabrina Ho:

1.   The Form 86 be amended by naming the Director of Immigration as the interested party.

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

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 30 May 2022 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the Decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 22 June 2020 (the “Board’s Decision”).  In the Board’s Decision, the Board rejected the Applicant’s appeal against the Decision of the Director of Immigration (the “Director”) dated 28 March 2019.

2.In the Affidavit in support of the Leave Application (the “Affidavit”), the Applicant exhibited a copy of the Board’s Decision.

3.In the Form, the Applicant named the Board as the interested party.  I will amend the Form on my own motion to name the Director as the interested party instead.

4.After the Leave Application was lodged, by a letter the dated 30 May 2022, the Court drew the Applicant’s attention to HCAL 60/2009 and HCAL 713/2017 (the “Other Applications”) and requested the Applicant to explain why his application should not be struck out for abuse of process as it seems that the Leave Application is similar to HCAL 60/2009 and HCAL 713/2017.  By a letter dated 6 June 2022, the Applicant explained that the Leave Application is different from the Other Applications.  Having considered the Applicant’s explanation, the Court was persuaded that the Leave Application does not duplicate with the Other Applications and allowed the Leave Application to proceed.  By a Notice of Hearing dated 29 December 2025 sent to the Applicant’s address provided by the Immigration Department on 2 December 2025, notice of the oral hearing of the Application (the “Notice” and “Hearing”) was given to the Applicant.

5.At the Hearing, which the Applicant attended, the Applicant seeks an adjournment of the Hearing to March 2026, saying that he wishes to instruct a lawyer to represent him. He said that he was only notified that the Leave Application can proceed by the Notice and there was insufficient notice for him to instruct a lawyer.  I rejected the Applicant’s application for adjournment of the Hearing.  The Notice was sent to the Applicant on 29 December 2025, 1 month before the Hearing. There is sufficient time for the Applicant to instruct legal representatives ahead of the Hearing.  I do not consider there to be any good reason to postpone the Hearing.

6.Apart from the above, the Applicant did not add anything to his Leave Application.

Background

7.The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision, and it is not necessary for me to repeat the same here.  The hyperlink to the Board’s Decision is included below[1] for reference.

Leave Application out of time

8.The Board’s Decision was issued on 22 June 2020.  However, the Form was only filed on 30 May 2022, nearly 2 years later and way beyond the time prescribed for filing an application for leave for judicial review of the Board’s Decision, which is 3 months from the date of the Board’s Decision: see Order 53 Rule 4 RHC (Cap 4A).

9.In the Form, the Applicant stated that he did not apply for the Leave Application earlier as it was stated in the letter enclosing the Board’s Decision that “The Decision of the Board/Adjudicator is final”.

10.In considering whether time should be extended for an application for leave for judicial review, the Court will consider, amongst other things, the following:

a.  The length of the delay;

b.   The explanation of the delay;

c.   The merits of the substantive application;

d.   The prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time; and

e.   The question of general public importance.

See: AW Director of Immigration and William Lam CACV 63/2015, 3 November 2015 at para 27

11.I do not consider the Applicant’s explanation for the delay in taking out the Leave Application to be a good one.  Even assuming the Applicant misunderstood the Board’s Decision to be final with no further avenue of challenge, the Applicant did not go on to explain when he found out that judicial review may be applied to challenge the Board’s Decision and whether he had then taken out the Leave Application promptly.  Further and importantly, the Leave Application has no merits, for reasons which I will explain below.  Hence, even if there had been any application by the Applicant for extension of time to apply for leave for the judicial review, I would have rejected it.

Leave Application unmeritorious

12.In the Affidavit, the Applicant complained that the written reasons for refusing his non-refoulement claim are different from the documents submitted to the Board. The Applicant further said that he is going to ask a lawyer to take over the case so that he can file the “grounds of appeal” for him.

13.The relevant legal principles are well established.  The Court’s role in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases, 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 should not usurp the role of the Board.  Assessment of evidence, country of origin information (COI) materials, 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, procedural unfairness or irrationality in the decision of the Board: see Nupur Mst v Director of Immigration [2018] HKCA 524 at para 14.  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: see Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

14.Having considered all the relevant materials before me, I do not consider the Applicant’s intended challenge against the Board’s Decision to be reasonably arguable with any realistic prospect of success.

15.I have reviewed the Board’s Decision in detail.  The Board had fully considered the Applicant’s situation, including his evidence and his grounds for challenging the Director’s decision in refusing his claim for non-refoulment protection.  As noted in paragraph 30 of the Board’s Decision, the Board’s analysis and conclusion were reached based on all the evidence relating to the Applicant before it.  On the facts, the Board found that the Applicant failed to show that there would be real risk of any of the proscribed harm if he returns to Nigeria, as the past events which the Applicant relies on took place a long time ago.  In particular, the Board found that the Boko Haram and the Fulani herdsman militant Islamist groups do not pose any appreciable risk to the Applicant at his hometown of Lagos or at Abuja.  There would only be a small possibility that the Applicant faces any risk of threat in Nigeria from OKeKe or X, or criminal groups generally: see the Board’s Decision paras 115-120.  In addition, the Board considered that there are internal relocation options available to the Applicant: see the Board’s Decision para 129.  On the above bases, the Board found that the Applicant would not face any Persecution Risk, BOR 2 Risk, BOR 3 Risk or Torture Risk[2] if he returns to Pakistan and rejected the Applicant’s appeal: see the Board’s Decision paras 130-135.  I do not consider there to be any error of law, procedural unfairness or irrationality in the Board’s Decision.

16.Leave application of this sort is meant to be a filtering process and this Court is not expected to give elaborated reasons for its decision: see Re Zunariyah [2018] HKCA 14 at para 23.  I have considered all the relevant materials in reaching the present decision.

Conclusion

17.For the reasons stated above, I will dismiss the Leave Application.

Dated the 19^th day of March 2026

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