Mirdha Hridoy v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1100/2025

[2025] HKCFI 5160

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1100 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:

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 3 April 2025 of the Torture Claims Appeal Board (“the Board’s Decision”), which disallowed him filing the notice of appeal against the Notice of Decision dated 21 May 2024 (“the Director’s Decision”), refusing his non-refoulement claim because he was late for over 6 months. [2] & [4] See the Board’s Decision by hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001100_2025_files/the_Board's_Decision.pdf.

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.

4.The applicant has filed Form 86 on 12 May 2025 for leave for judicial review of the Board’s Decision.

5.In his affirmation, the applicant said that he did not have any legal advice, and the director and the adjudicator did not see the grounds to reverse their decisions.

DISCUSSION

6.The Board did not hold a hearing for his application. The Board is entitled to do so pursuant to section 12 of Schedule 1A of the Immigration Ordinance, Cap. 115.[1]

7.The applicant has stated his reasons for the delay in filing the Notice of Appeal under section 5 of the Notice of Appeal as follows:

“For my late filing main reason is I am unable to read and write English. Also, I have no knowledge of legal proceeding. I was convicted for illegal working so mentally was upset. Duty lawyer no help me for fill up this form. And CSD welfare officer they no help us for immigration claim.”

8.The Board had dealt with his reasons, viz: (i) his language problem; (ii) his mental distress because of his conviction; and (iii) he had no knowledge of legal proceedings in the Board’s Decision.

9.For the reasons stated in the Board’s Decision, the Board rejected his reasons. Briefly, the Board did not accept his explanations because the facts of the case show that the language problem was not acceptable, his mental distress should not be the cause of his delay and the legal proceedings had been explained to him in the Director’s Decision.

10.Section 37ZT of the Ordinance deals with late filing of the notice of appeal. It was revised and the new version took effect on 1 August 2021. The relevant parts of the revised version are as follows:

“37ZT.

Late filing of notice of appeal

(1) If a notice of appeal is filed after the expiry of the 14-day period referred to in section 37ZS(1), it must include an application for late filing of the notice, which —

(a) must include a statement of the reasons for failing to file the notice within that period; and

(b) must be accompanied by all available evidence relied on in support of the reasons referred to in paragraph (a).

(Amended 7 of 2021 s. 19)

(2) The Appeal Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal under subsection (3), and in doing so, the Board may only take account of the statement of reasons stated in the application for late filing of the notice of appeal and the evidence relied on in support of the reasons.

(Amended 7 of 2021 s. 19)

(3) The Appeal Board may allow the late filing of the notice of appeal if the person filing the notice provides sufficient evidence in writing to satisfy the Board that the person —

(a) had exercised all due diligence to file the notice within the period specified in section 37ZS(1); but

(b) failed to file the notice within the period because of circumstances beyond the person’s control.

(Replaced 7 of 2021 s. 19)”

11.Having considered the Board’s Decision, I agree that the Board had applied the revised version of section 37ZT of the Ordinance to the applicant’s application appropriately. It did not have to consider the merit of the applicant’s merit as provided by the statutory provision. Therefore, those authorities before the revision of the statutory provision that the Board has to consider the merit of the applicant’s claim before it should decide whether extension of time should be given to the applicant to file his notice of appeal is no longer applicable since the new statutory provision, effective on 1 August 2021.

12.As to the reasons he raised in paragraph 5, they are not valid to challenge the Board’s Decision. The court in in Re Ahmed Syed Rafiq [2018] HKCA 178, Hon Lam & Chu JA, 26 March 2018, held:

“22. This Court has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”

13.The Board has already set out its reasons in the Board’s Decision. The applicant has not raised any valid ground to challenge it.

14.Therefore, he does not show any reasonable prospect of success in his intended application for judicial review of the Board’s Decision.

CONCLUSION

15.Accordingly, I dismiss his application.

Dated the 12^th day of November 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