Dashzeveg Tumendelger v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3241/2019

[2025] HKCFI 2923

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3241 of 2019

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 the Applicant being absent in open court;

Order by Deputy High Court Judge To:

1.   Extension of time to file the application for leave to apply for Judicial Review (“Form 86”) be refused; and

2.   Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 30 October 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 21 June 2017.  She named the Board and the Director of Immigration (the “Director”) as the proposed respondents.

2.The Applicant’s address as provided by her in her Form 86 filed on 30 October 2019 is care of Castle Peak Bay Immigration Centre (“CIC”). However, correspondence addressed to her at that address seven days later was returned with an indication that she had left CIC.  She had never informed the Court of her change of address.  Through inquiries with the Immigration Department, the Court was informed of her telephone number and address in Woo Sung Street.

3.The Applicant had requested an oral hearing.  A hearing was scheduled and notice of hearing was sent to her by post to her address as discovered from the Immigration Department.  It has not been returned through the post.  There is nothing to suggest that she had not received the notice of hearing or had moved.  On the day before the hearing, a court staff attempted to contact her by telephone to remind her of the hearing, but the call was not answered.  The Court was satisfied that the notice of hearing had been dully served on the Applicant and that the Court had tried its best endeavour to bring the hearing to her notice.  She did not appear at the hearing.  She is deemed to have waived her right to make oral submissions at the hearing.  According, the Court determined her leave application on paper.

4.Enquiries with the Board and the revealed that the Applicant made a torture claim under Convention Against torture and Other Cruel Inhuman or Degrading Treatment or Punishment (the “Torture Claim”) by way of written representation on 30 August and 1 September 2010.  Her Torture Claim was assessed under three grounds then available under the Unified Screening Mechanism, namely: Torture Risk[1], BOR 3 Risk ^[2] and Prosecution Risk^[3] grounds and refused by the Director by his Notice of Decision dated 16 June 2016 (the “Notice”).  She filed a notice of appeal about one month and 22 days after the 14-day appeal period.  The Board refused her late filing and issued a decision dated 19 May 2017 to dismiss her appeal (the “2017 Decision”).  She did not appeal the 2017 Decision, which therefore became final.  After calling for further information from the Applicant, the Director further assessed her claim under BOR 2 Risk^[4] ground and refused it by his Notice of Further Decision dated 16 June 2016 (the “Further Notice”).  The Applicant appealed within time, but her appeal was dismissed by the Board’s decision dated 1 March 2019 (the “2019 Decision”).

5.Neither the Director nor the Board had ever made any decision dated 21 June 2017 in the non-refoulement context in respect of the Applicant which she now seeks leave to judicially review.  Thus, it is not clear which decision the Applicant is seeking leave to review.  The Applicant did not attend the hearing to clarify her intention.  There are four decisions in respect of the Applicant in the non-refoulement context, two by the Director, namely the Notice and Further Notice; and two by the Board, namely the 2017 Decision and 2019 Decision.   The Decision of the Board is reviewable by judicial process but not the decision of the Director in the two Notices because there are established statutory procedures of appeal to the Board and the Applicant has invoked those procedures.  The Director’s decisions in the Notice and Further Notice were superseded by the Board’s two Decisions and are no longer susceptible to judicial review: Re Moshsin Ali[5]. The only decisions which the Applicant may seek leave to review are the Board’s 2017 Decision dated 19 May 2017 and 2019 Decision dated 1 March 2019.  But, in her Form 86, the Applicant only sought leave to apply for judicial review of the Board’s decision dated 21 June 2017, which is a non-existent decision.  Even if the Court were prepared to amend her Form 86 so that she may properly seek leave to apply in respect of either of these decisions, the Applicant did not attend the hearing to clarify her intention or to properly identify the decision sought to be reviewed.  This Court cannot on its own initiative make that choice for her.  Furthermore, the only two decisions in respect of which leave to review may be sought are now out of time for judicial review and, for reasons as explained below, there is absolutely no prospect that extension of time to file a leave application in respect of either of these decision will be given.

6.Under section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.  The 2017 Decision and the 2019 Decision were respectively made more than two years and five months and more than eight months before the Applicant filed her leave application.

7.In AW and Director of Immigration and William Lam[6], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.  Usually, the first three factors, particularly merits, are most crucial and determinative.  If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed in the remaining two.  Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors.  However, where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung[7], per Litton PJ. The delay in this case is so substantial that leave may be refused on this ground alone without considering the merits of the substantive application, unless the Applicant has a reasonable and credible explanation for the delay.

8.Despite clear warning in the Form 86 that an applicant is required to state his grounds for application and reasons for delay, if any, the Applicant provided neither.  She did not attend the hearing and forwent her opportunity to tender any explanation.  In any event, her delays are so inordinate that leave may be refused under the principle in Po Fun Chan v Winnie Cheung, however strong her complaint might otherwise be.  Thus, there is no prospect that this Court will grant extension of time to the Applicant to apply for leave to review either of these decisions.  Thus, it would be futile for this Court to grant her leave to amend the Form 86 to enable a leave application to be made in respect of either of these decisions. The only course open to this Court is to dismiss her application for want of subject matter to judicially review.

Conclusion

9.For the above reasons, leave to apply for judicial review is refused for want of subject matter for review.

Dated the 11^th day of July 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

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] [2018] HKCA 549

[6] CACV 63/2015 (unreported) 3 November 2015

[7] (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ