Jobanjeet Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 659/2021

[2026] HKCFI 1198

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 659 of 2021

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) Jeffrey Chau:

1.   Form 86 be amended by naming only the Torture Claims Appeal Board / Non-refoulement Claims Petition Office as the Putative Respondent; and the Director of Immigration as the Putative Interested Party.

2.   The Applicant’s application for extension of time to file the application for leave to apply for judicial review be granted.

3.   Leave is granted to the applicant to apply for judicial review of the Board’s Decision dated 5 July 2019;

4.   The applicant shall issue the originating summons for hearing within 14 days from the date of this Order, pursuant to Order 53, rule 5 of the Rules of the High Court;

5.   A copy of this Order be served on the Department of Justice to work out the proper directions for the judicial review hearing with the applicant; and

6.   Liberty to apply.

Observations for the Applicant:

Introduction

1.By a Form 86 dated 6 May 2021 (filed on 10 May 2021) (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 5 July 2019 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 28 September 2017 (deemed delivered on 30 September 2017).

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

3.In the Form 86, the Applicant also sought leave for judicial review against the DOI Decision. But the DOI Decision is superseded by the TCAB Decision (Re Moshin Ali [2018] HKCA 549 at [45]). For present purposes, the relevant decision is the TCAB Decision.

4.The Applicant requested for a hearing of this application. He was absent from the hearing.  I see no irregularity in the notification process.

Background

5.The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the TCAB Decision and in the DOI Decision.  For the purpose of the present Leave Application, as will be made plain below, I do not consider it necessary to repeat the same here.  The hyperlink to the TCAB Decision[1] is included below for reference.

Discussion

1.   The Applicant applied for leave for judicial review of the TCAB Decision in which the TCAB refused the Applicant’s late filing of the Notice of Appeal/Petition (the “NOA”).

2.   The applicable legal principles relating to application of this sort are well established.  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 §14)

3.   In the supporting Affirmation, the Applicant provided a number of grounds. Those grounds are vague and generic grounds, and in truth, has nothing to do with the case in question (which was decided purely on the ground of delay and lack of proper explanation with documentary evidence in support). 

4.   However, for the reasons explained below, I am of the view that there is a realistic prospect of success in showing that the TCAB had committed an error of law in dismissing the appeal by failing to consider the merits of the case in refusing the late filing of the NOA. 

5.   The starting point is Section 37ZT of the Immigration Ordinance (Cap. 115) which governs the late filing of the Notice of Appeal.  Section 37ZT was amended in 2021, and the present version has become operative since 1 August 2021.  The present version does not require that the Board must consider the merits of the applicant’s case in determining whether time should be extended (Section 37ZT(2)).

6.But the revised legislation does not have retrospective effect.  As the NOA in the present case was filed on 22 March 2016, the old provision applies.  Under the previous Section 37ZT(2), in considering whether it should allow the late filing of the Notice of Appeal, the TCAB should take into account “any other relevant matters of fact within the knowledge of the [TCAB]” apart from the explanation for the delay.

7.The leading authority on this issue is the English Court of Appeal decision in The Secretary of State for the Home Department v Begum [2016] EWCA Civ 122, 3 March 2016.  The approach adopted in Begum has generally been referred to as the 3‑stage approach.  The first stage of the Begum analysis is to identify and assess the seriousness or significance of the failure to comply with the rules.  The second stage is to consider why the failure occurred, that is to say whether there is a good explanation for it.  The third stage is to evaluate all the circumstances of the case so as to enable the Court to deal with the application justly. 

8.In respect of the third stage, it is well established that the law required the TCAB to consider the merits of the Applicant’s case: Re Khan Kamal Ahmed [2019] HKCA 377, at paragraphs 18 to 20; Re Qasim Ali [2019] HKCA 430, at §§24-26; Re Madbar Abdul Salam [2019] HKCA 640, at §§25-28.

9.The above principles are summarised by the Court of Appeal in Re Mohammed Aslam [2025] HKCA 914, §§13-17. I note in particular that the TCAB’s conclusion, namely, that “[The TCAB] is not aware of any special circumstances that would make it unjust not to allow the late filing of the NA” (§21) is substantially similar to the TCAB’s conclusion in Re Mohammed Aslam (§16) in that the circumstances or matters were not spelt out, and it is therefore, for like reasons, also not possible for this Court to be satisfied that the TCAB had properly considered the merits of the Applicant’s case, notwithstanding the fact that the TCAB expressly referred to Begum [20].

10.The primary decision-makers in a claim for non-refoulement are the DOI and the TCAB.  The role of the Court in judicial review is not to re-assess the non‑refoulement claim but to scrutinize the TCAB decision for errors of law, procedural unfairness or irrationality.  The discretion to extend the time for appeal is vested in the TCAB.  In the present case, the TCAB had exercised such discretion incorrectly by failing to take into account the merits of the case.  If the judicial review of the TCAB Decision succeeds, the TCAB Decision will be quashed and the matter will be remitted to the TCAB to see if, in the circumstances of the case, it should extend the time so as to undertake the re-hearing process. 

11.But the represent application for judicial review is also out of time.

12.Given RHC O. 53 r. 4(1) and s. 21K(6) High Court Ordinance (Cap. 4A), where an Applicant applies for leave to apply for judicial review more than 3 months after the decision:

a.   The failure to apply within 3 months constitutes “undue delay”.  To justify an extension of time in which to apply for leave, the Applicant must show “good reason” to extend time.  In deciding this, certain factors that are likely to be significant are (i) the length of the delay (ii) the explanation for the delay[2] (iii) the merits of the substantive application[3] (iv) prejudice, and (v) whether the application raises questions of general public importance;

b.   Where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review.  The refusal of an extension of time is part and parcel of a refusal to grant leave to apply. It is not the case that the court refuses the extension of time as a discrete decision and then makes no decision on the question of leave to apply for judicial review, treating this as a separate matter entirely;

c.   If the court is satisfied that there is good reason for extending the period, it does not follow that leave to apply for judicial review will automatically be given.  While the court might grant leave, it retains a discretion to refuse to do so and the existence of a good reason for undue delay is only one facet of the question, others including sufficiency of interest and the need to satisfy the arguability test.  Leave may also be refused on the basis that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration; and

d.   Even if leave to apply is granted, the issue of undue delay on the part of the applicant may be raised again at the substantive hearing of the judicial review application.  That is a separate consideration of whether relief should be refused on the basis that the court thinks that relief would be likely to cause substantial hardship or prejudice to the rights of another or be detrimental to good administration.

See Thing Sunil v TCAB [2025] HKCFI 4366, at [9], citing AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) at [23 to 36], Thomas Lai [2014] 6 HKC 1 at [43 to 45] as also cited in AW, supra), and H v Director of Immigration (2020) 23 HKCFAR 248 at [17-22, 36-44] citing inter alia both AW and Thomas Lai. See also Re Hariatiningsih [2021] HKCFI 1194 at §§12-13, 16-19 citing the aforesaid, upheld in [2022] HKCA 1321.

13.Considering the fact that the TCAB’s error was fundamental, I exercise my discretion to extend time notwithstanding the absence of any good explanation for the gross and undue delay. Of course, the issue of undue delay on the part of the applicant may be raised again at the substantive hearing of the judicial review application.

14.For the above reasons, leave is granted to the applicant to apply for judicial review of the TCAB Decision as the Applicant’s case has a realistic prospect of success notwithstanding the delay in making the present application.

6.   The applicant shall issue the originating summons for hearing within 14 days from the date of this Order, pursuant to Order 53, rule 5 of the Rules of the High Court.

7.   A copy of this Order be served on the Department of Justice to work out the proper directions for the judicial review hearing with the Applicant.

8.   Liberty to apply.

Dated the 13^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