Yam Kumari Rai v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1673/2020

[2025] HKCFI 4722

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1673 of 2020

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 oral submissions by the Applicant in open court;

Order by Deputy High Court Judge (Non-Refoulement Claims) Vincent Lung:    

1.  Form 86 be amended, naming the Torture Claims Appeal Board/Non‑refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration be named as the Putative Interested Party.

2.  Leave to apply for judicial review out of time be granted.

Observations for the Applicant:

Introduction

1.By a Form 86 filed on 17 August 2020 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 1 November 2019 (the “TCAB Decision”), which refused her application to make a late filing of the appeal/petition from the decision of the Director of Immigration (“DOI”) dated 16 May 2017.

2.I amend the Form 86 on my own motion to name the TCAB as the putative respondent and the DOI as the putative interested party.

3.The Applicant requested for a hearing of this application and she attended the same.  When asked if she had anything to add she confirmed that she had not.

Background

4.The Applicant is a national of Nepal.  She seeks non-refoulement protection on the basis that she would be harmed or killed by the Maoists (a political party in the Applicant’s locality) if she is to go back because she had refused to join them and was unable to contribute any donation to them.

5.She first sought protection under the Unified Screening Mechanism, resulting in a dismissal by the DOI on 27 August 2014 (her appeal was dismissed by the TCAB on 4 January 2017).  The DOI released a further decision on 16 May 2017 dismissing the Applicant’s claim under Article 2 of the Hong Kong Bill of Rights.  The Applicant was late in filing her notice of appeal against this further decision (she only filed on 27 July 2017 when the deadline fell on 1 June 2017), and the TCAB refused to her application to make a late filing (i.e. the TCAB Decision being the subject matter of this application).

6.The relevant facts and procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1].  I shall therefore not repeat them.

Discussion

7.The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23].  It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

8.I remind myself that in a judicial review, this court does not provide a further avenue of appeal.  Though in non-refoulement cases an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers.  A finding of fact is exclusively within the realm of the TCAB, and this 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 TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

9.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

10.The Applicant did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision whether in the Form 86 or her affirmation in support.

11.I note that the TCAB took into account of the then-in-force section 37ZT of the Immigration Ordinance which governs late filing of the notice of appeal [3, 5].  The TCAB concluded that there was no reasonable explanation for the lateness [6], and there were no special circumstances to allow the late filing of the Notice of Appeal [8]. 

12.Nevertheless, the TCAB did not actually consider the merits of the proposed appeal.  The TCAB Decision at [7] stated that the TCAB did not “have sufficient documents or information to decide [the Applicant’s] grounds of appeal and it is not appropriate to consider the strength of her grounds of petition”.  It is not apparent why the TCAB considered that there was insufficient documents or information, but in any case merits is a relevant (indeed important) consideration as to whether time should be extended, and it is not open to me to consider whether the result would have been different if the TCAB had properly taken merits into account: Re Khan Kamal Ahmed [2019] HKCA 377 at paragraphs 16-22.  It is reasonably arguable that the TCAB erred in this regard.

13.I further note that the present leave application was brought out of time, given that Order 53 rule 4(1) requires the leave application to be taken out within 3 months after the TCAB Decision was made. But given that I consider the proposed judicial review is reasonably arguable, I am prepared to extend time for the Applicant (although no reasons were given for the lateness).

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