Kisambale Pius Henry v. Torture Claims Appeal Board

HCAL 1104/2021

[2026] HKCFI 2305

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1104 OF 2021

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

Order by Deputy High Court Judge Michael WONG:

1.   On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”. 

2.   The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 6 August 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect the decision of the Torture Claims Appeal Board (“the Board”) dated 21 July 2021 (“the Board’s Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001104_2021_files/the_Board's_Decision.pdf

2.The Board’s Decision was in respect of the applicant’s late filing of his Notice of Appeal/Petition (“NOAP”) against the decision of the Director of Immigration (“the Director”) dated 31 July 2019 (“the Director’s Decision”), which refused the applicant’s application to re-open his non-refoulement claim that was deemed withdrawn on 5 March 2019 due to his failure to return the completed Non-refoulement Claim Form (“NCF”) as required (see sections 37Y and 37ZG(1) of the Immigration Ordinance, Cap 115 (“the Ordinance”)).

3.After due consideration of the relevant provisions in section 37ZT of the Ordinance as well as paragraphs 9.2 to 9.4 of the Petition Guide[1], the Board found that: (1) the applicant gave no reasonable explanation for his 21 months delay; (2) there was no relevant matter within the knowledge of the Board which suggested it would be unjust not to allow the late filing; and (3) there was no special circumstance which made it unjust not to enlarge the time of appeal from a 14-day period to a 21-month duration in the applicant’s factual circumstances.

4.Hence, the Board refused the applicant’s application for time enlargement for the late filing of his NOAP.

Amendments

5.In Form 86, the applicant named TORTURE CLAIMS APPEAL BOARD/NON REFOULEMENT CLAIMS PETITION OFFICE” as the putative respondents, when only the Board should be the putative respondent.

6.The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all. 

7.Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board”.

The applicant’s case

8.It is unnecessary and indeed impossible to discuss the details of the applicant’s non-refoulement claim here as the applicant did not provide his completed NCF in accordance with section 37Y of the Ordinance.  His claim was deemed withdrawn on 5 March 2019 pursuant to section 37ZG(1) of the Ordinance due to his failure to provide his completed NCF to the Director.  Thus, there was no assessment of the applicant’s non-refoulement claim by the Director.

9.In any event, the Leave Application is only about the applicant’s challenge on the Board’s Decision in refusing his application for late filing of the NOAP.

10.The chronology of events leading to the applicant’s filing of his NOAP with the Board was set out in paragraph 11 of the Board’s Decision, and it is not necessary for this court to repeat the same here.

11.Briefly put, the applicant failed to file his completed NCF by 1 March 2019 as required by the immigration officer under section 37Y(1) of the Ordinance.  After his non-refoulement claim was deemed withdrawn by virtue of section 37ZG(1) of the Ordinance on 5 March 2019 and he was so informed of the deemed withdrawal, he did not approach the Director to apply for re-opening of his claim until 4 months later on 15 July 2019.  After the Director issued his Notice of Decision dated 31 July 2019 to refuse the applicant’s application to re-open his non-refoulement claim, the applicant did not seek to appeal/petition against the Director’s Decision some 21 months later until 11 June 2021.

Oral hearing

12.The applicant requested for an oral hearing of the Leave Application. His case was heard on 2 April 2026.

13.When this court asked the applicant for the grounds of his intended judicial review, the applicant merely said that he was still in danger, he still had the same problem and he wanted to have asylum because he was not safe in his home country.

14.This court then asked the applicant to elaborate on what he had stated in his supporting affidavit dated 6 August 2021, namely that he was not given a chance to explain his case and he was not allowed to submit any evidence in support of his case.  However, the applicant only replied that he was not given sufficient time to produce the documents that he wanted to produce and he wanted to emphasize the danger for him to go back to his country.

Grounds for judicial review

15.The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

16.The applicant did not provide any ground for his intended judicial review in Form 86, but stated in his supporting affidavit that he was not given a chance to explain his case and he was not allowed to submit any evidence in support of his case.

17.As aforesaid, the applicant did not elaborate on the said assertions at the oral hearing before this court.

Discussion

18.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

19.Thus, the applicant cannot ask this court to assess or re-assess his non-refoulement claim or his risks upon his return to his country.

20.His assertions that he was never given a chance to explain his case and he was not allowed to submit any evidence in support of his case were also groundless. 

21.In deciding an application for late filing of the NOAP, the Board was only required to comply with the then provisions of section 37ZT(2) and (3) of the Ordinance (which were applicable to the applicant’s case).  The then section 37ZT(2) provided that the Board must determine the time extension application as a preliminary issue without a hearing, and the Board only needed to take account of: (1) the statement of reason for lateness with reference to the documentary evidence in support; and (2) other relevant matters of fact within the knowledge of the Board.  The then section 37ZT(3) stipulated that the Board may allow late filing of the NOAP if it is satisfied that, by reason of special circumstances, it would be unjust not to allow the late filing of the NOAP.

22.Thus, the Board was not required to hold any oral hearing in deciding whether the late filing of the NOAP should be allowed or not.  The Board only needed to take account of the statement of reasons and the documentary evidence in support.  The Board was not obliged to allow the applicant to explain his case or to submit further evidence at all. 

23.It is clear from the Board’s Decision that the Board did consider and comply with the then provisions of section 37ZT(2) and (3) of the Ordinance.  In paragraphs 19 to 34 of the Board’s Decision, the Board gave detailed reasoning as to why it found that the 21 months delay was an inordinate one.  In paragraphs 35 to 46 of the Board’s Decision, the Board gave detailed reasoning as to why it did not find that the applicant had provided a reasonable explanation for his 21 months inordinate delay.  This court finds nothing wrong or unreasonable in the way the Board reached such conclusions. 

24.This court notes that the Board did not refuse the applicant’s late filing of the NOAP simply because of the extent of lateness and the applicant’s failure to provide a reasonable explanation of the delay.  The Board went on to assess the merits of the applicant’s application and to see whether there might be any special circumstances by reason of which it would be unjust not to allow the late filing of the NOAP.

25.The Court of Appeal has held that “any other relevant matters of fact within the knowledge of the Board” under the then section 37ZT(2)(b) of the Immigration Ordinance required the Board to take account of the merits of the appeal (see Re Khan Kamal Ahmed [2019] HKCA 377, Re Qasim Ali [2019] HKCA 430 and Re Villarosa Rhea Limbaga [2024] HKCA 95). 

26.As can be seen from paragraphs 47 to 51 of the Board’s Decision, the Board gave detailed reasoning as to why it found that the applicant was not facing circumstances beyond his control which led to his failure to provide the Director with his NCF.  The Board also made reference to the approach accepted by the Court of Appeal in Re Musafaqoh, CACV 335/2018.  The Board found that there was nothing to justify the Board to exercise the Director’s discretion afresh under section 37ZG(3) in favour of the applicant to grant him a re-opening of his non-refoulement claim.

27.The Board also laid out in paragraphs 52 to 67 of the Board’s Decision the reasons in finding that the applicant was not prejudiced by the Director’s refusal to re-open his non-refoulement claim without considering the merits of his non-refoulement claim.  This court agrees with the Board’s decision in this regard.  It is clear that the applicant’s non-refoulement claim could not be considered due to his own failure in providing the Director with a completed NCF within the allowable period.

28.Thus, the applicant’s complaints that he was not given a chance to explain his case and was not allowed to submit any evidence in support of his case are totally devoid of merits.

29.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision.

30.In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success.  It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

31.For reasons aforesaid, the Leave Application is dismissed.

Dated the 22^nd day of April 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