Ourang Zaib v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 537/2020

[2026] HKCFI 167

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 537 OF 2020

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D E C I S I O N

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1.By a summons issued on 18 September 2025 (“Summons”) supported by an affirmation of the same date (“Affirmation”) the Applicant applied “for leave to appeal out of time” my order dated 22 August 2025 (“Order”) wherein I had refused his application for leave to apply for judicial review of a decision of the Torture Claims Appeal Board (“TCAB”)/Non-Refoulement Claims Petition Office (“NRCPO”) dated 11 March 2020 (“TCAB Decision”). He also sought leave to advance a sole new ground of appeal, but did not identify such in the Summons.

2.In the Affirmation, the Applicant:

(1)  Said that my decision (which in context must refer to my decision in [2025] HKCFI 3620 (“Leave Decision”)) was reached unfairly as:

(a)  He was not given the opportunity to clarify his case and circumstances regarding his home country, and expressed his “genuine fear” of being killed or harmed if he is refouled; and

(b)  He did not receive any correspondence from the court regarding the hearing date, which prevented him from attending, and he only learnt about the dismissal of his application from his immigration case officer during reporting and had since been detained due to lack of legal representation; and

(2)  Asked for the appeal to be considered despite it being submitted out of time, and that he be granted the opportunity to explain his situation.

3.As the 14-day period for the Applicant to appeal against the Order expired on 15 September 2025 (RHC O. 53 r. 3(4) [1]), I consider that the application is one for an extension of time for appealing against the refusal of leave. In dealing with such I have had regard to the length of the delay, the reasons for the delay, the prospects of the intended appeal, and the prejudice to the respondent if an extension of time is granted (see Re Gurung Min Bahadur [2018] HKCA 226; Re Saqlain Muhammad [2018] HKCA 346; Nupur Mst [2018] HKCA 524; Nguyen Van Quyen [2025] HKCA 510). The prospect of success is important as the court will not grant an extension of time to pursue a hopeless appeal (Tran Van Anh [2025] HKCA 408).

4.At the hearing, the Applicant, who was in custody, claimed that he was sick and “cannot stay in so I want to go out” (which request he repeated), and asked for me to allow him “to go out”. However, as I explained to him, no such application was before me and in any event medical assistance could be sought while he was in custody. I asked him about, and he made some other submissions on, the salient considerations in relation to his application, which I address below.

5.I turn, firstly, to the reasons for the delay of 3 days, for while the period is not substantial, the reasons proffered by the Applicant for the delay are directly relevant to his alleged grounds of appeal (which he confirmed to me at the hearing were those summarised in paragraph 2(1) and (2) above):

(1)  The Applicant orally claimed that he had not received the Notice of Hearing dated 30 April 2025 (“Notice of Hearing”) (in which notification was given that the hearing of his leave application had been scheduled for 19 May 2025). He had also said in the Affirmation that he had only learnt of the dismissal of his application upon reporting to the Immigration Department on a date which he did not specify, which had resulted in his immediate detention. This was even though both the Notice of Hearing and Leave Decision had been sent to the Applicant by post at an address provided by the Immigration Department as of 29 April 2025 (“SSP Address”)[2] and had not been returned undelivered.

(2)  The Applicant also claimed that he had moved away from the address given in the Form 86[3], firstly to the SSP Address, and then (some 2 to 2 ½ years ago) to another unknown address in Yuen Long (“Alleged New Yuen Long Address”). Although he had allegedly lived there for such a period, he claimed he could not remember the Alleged New Yuen Long Address (other than that it was the last stop of minibus 39, “Pak Sha Tsuen”), sought to blame such on his being “not educated”, and could not even tell me the month during which he claimed to have started living at the Alleged New Yuen Long Address. He also claimed that he had given the Immigration Department both the SSP Address, and then the Alleged New Yuen Long Address.

(3)  When I asked him why the court should accept his claims despite the Immigration Department having in April 2025 provided the SSP Address to the court, he merely repeated his claim that he had not received the Notification of Hearing and the Leave Decision. He also had nothing to say in relation to the fact that the Notice of Hearing and Leave Decision had not been returned undelivered by post.

(4)  I do not see that I have been given any good or valid reason for the delay, even given its minimal length, as:

(a)  There is no credible evidence to establish that the Applicant had moved from the SSP Address to the Alleged New Yuen Long Address and updated the Immigration Department (let alone the court) with such, whether by the time the Notice of Hearing was issued or indeed thereafter; and

(b)  Even if I were to accept that the Applicant had, in fact, moved to the Alleged New Yuen Long Address some 2 years ago as claimed, he had clearly failed to update the court and the Immigration Department with such. As it is his duty to give the court, and the Immigration Department, an address to which correspondence or notice can come to his attention in a timely manner, the consequence of any delay occasioned by the ineffectiveness of such an address falls on his shoulders (Hasmi Rizwan Imran HKCA 439 at §§14-15; Rai Tika Kumari [2025] HKCA 78).

6.As to the prospect of success of the Applicant’s attended appeal, I see no basis (in the nature of an error of law, a failure to take account of relevant matters already placed before the court, or that I was plainly wrong) on which the Court of Appeal would reverse the Leave Decision (Nupur Mst, supra):

(1)  In relation to the Applicant’s grounds of appeal summarised in paragraph 2(1) and (2) above:

(a)  Given the matters discussed above, there is no merit in the Applicant’s allegations (which I have rejected) that he did not receive any correspondence from the court regarding the hearing date and was hence allegedly deprived of the opportunity to clarify his case and circumstances. However, even if I were to accept his claim that he did not receive such correspondence (i.e. the Notice of Hearing), for reasons above there is still no merit in such complaint as he only has himself to blame for his non-attendance at the leave hearing, and as his absence at the hearing without any proper explanation meant that I was entitled to deal with the leave application on the available materials (Rai Tika Kumari, supra); and

(b)  I also do not see how the other matters in paragraph 2(1) and (2) above, and/or indeed the Applicant’s oral claims made at the hearing in relation to such[4], give rise to any viable grounds of appeal that would justify reversing the Leave Decision. This is so given the nature of judicial review proceedings which (as I pointed out in the Leave Decision) are not a further avenue of appeal, and when I had (as explained in the Leave Decision) reviewed the TCAB Decision with rigorous examination and anxious scrutiny, applying the enhanced Wednesbury standard, and saw no reasonably arguable public law grounds to vitiate the TCAB Decision, in which inter alia the Applicant was found not to be a credible or truthful witness and none of the four bases of risk were established, and internal relocation was possible without undue hardship. Moreover, general assertions of fear do not constitute a ground of appeal (Re Saldua Dorothy Trifalgar [2022] HKCA 627 at §6; Bool Lorenza Atienza & ors. [2024] HKCA 1154 at §16).

7.Finally, and given the above, an extension of time for the Applicant to advance a hopeless appeal would substantially and needlessly prejudice the respondent.

8.In the circumstances, I refuse the application and dismiss the Summons.

The Applicant appeared in person