Chinfan Mekin v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 373/2026

[2026] HKCFI 2469

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 373 of 2026

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 refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 29 January 2026 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.The applicant asked for a hearing. However, he was absent at the hearing on 20 April 2026. I shall deal with his application on the papers.

The applicant

3.The applicant is a national of Thailand. He is an illegal immigrant. He lodged a non-refoulement claim with the Director of Immigration (“the Director”) on the basis that, if refouled, he will be harmed or killed by the loan sharks because he was unable to repay his debt.

4.Details of his claim are set out in the Board’s Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2026/HCAL000373_2026_files/the_Board's_Decision.pdf

The Director’s Decision

5.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

6.By way of Notice of Decision dated 20 March 2025 (“the Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks because it was unsubstantiated.

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. However, he filed the notice of appeal with the Board out of time. The Board received the notice of appeal on 29 December 2025. The Board enquired with the duty lawyer representing the applicant, who confirmed that the Director’s Decision was handed over to the applicant in a meeting on 27 March 2025. The Board therefore regarded the date of notice of the Director’s Decision by the applicant was 27 March 2025 and found that the applicant was late for over 8 months in filing his notice of appeal. [56]

8.The applicant had given reasons in support of the appeal and provided a statement of the reasons for late filing under section 5 of the notice of the appeal. [53] & [54] The first reason under [53] is that he was detained in the detention centre of the Immigration Department and he wanted to stay in Hong Kong because it is safe for him. The second reason under [54] is that he was late because he is uneducated and he is not aware of the procedure for appeal.

9.The Board found that the applicant did not exercise all due diligence to file the notice of appeal within the statutory period of 14 days under section 37ZS(1) and there was no evidence to show that there was any circumstances which was beyond his control, which prevented him from filing the notice of appeal on time. The Board therefore did not allow the applicant to file the notice of appeal out of time. [57] & [58] The Board refused late filing of his application. [59]

Application for leave to apply for judicial review of the Board’s Decision

10.The applicant has filed Form 86 dated 10 February 2026 for leave to apply for judicial review of the Board’s Decision.

11.In support of his application, the applicant lodged a statement, stating that the Board’s Decision is Wednesbury unreasonable or irrational and the adjudicator had failed to give sufficient reasons for dismissing his appeal.

DISCUSSION

12.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14.The Board has given the reasons for refusing to extend time for the applicant to file his notice of appeal in paragraphs 7-9.

15.Section 37ZT of the Ordinance provides:

“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)”

16.The Court of Appeal in Re: Fillarosa Rhea Limbaga [2024] HKCA 95 on the issue of late filing of notice held:

“15. We are aware that section 37ZT(2)(b) of the Ordinance has been amended in 2021 and it no longer contains the words ‘any other relevant matters of fact within the knowledge of the Board’. …”

17.It is therefore not incumbent upon the Board to consider the merits or other matters of the applicant’s claim for the late filing of the notice of appeal.

18.The applicant’s claim is relatively simple. He fears that he may be harmed or killed by the loan shark if he returns to Thailand because he was unable to repay his debt. The Director had considered his claim and refused his claim because it was unsubstantiated. It is clear the applicant’s reason in support of his claim does not fall into any category of the applicable risks.

19.The applicant has raised no reason to challenge the Board’s Decision.

20.In my view, the Board had applied section 37ZT of the Ordinance to the applicant’s case correctly. The applicant’s reasons under paragraph 11 are invalid to challenge the Board’s Decision.

21.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

22.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 6^th day of May 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