Kimono Sarah v. Director of Immigration

HCAL 1092/2021

[2026] HKCFI 4108

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1092 OF 2021

Application for leave to apply for judicial review

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

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant in open court;

Order by Deputy High Court Judge Michael WONG:

1.  On this court’s own motion, “The Director of Immigration” be deleted as the putative interested party, and the decision in respect of which relief is sought be amended to “Director of Immigration’s decision dated 26 November 2018”.

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 3 August 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision which was described as follows:-

“The Director of Immigration made a decision on 25 June 2021 by ruling that the applicant failed to establish her Non-refoulement claim”

2.In her supporting affirmation dated 3 August 2021, the applicant alleged that she could not submit a copy of the decision of the Director of Immigration (“the Director”), as she had lost it. However, there was in fact no such decision made by the Director on 25 June 2021 in respect of the applicant’s non-refoulement claim. The Director only made a decision dated 26 November 2018 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.The applicant filed a Notice of Appeal/Petition on 5 December 2018 to appeal/petition against the Director’s Decision to the Torture Claims Appeal Board (“the Board”). Subsequently, by way of a letter dated 10 June 2021 to the Immigration Department (“the 1^st Withdrawal Letter”), the applicant applied to cancel all her non-refoulement claims in Hong Kong. In the 1^st Withdrawal Letter, the applicant stated that she wanted to go back to Uganda as soon as possible, it was safe for her to go back and she had money to buy her ticket.

4.The Director forwarded the applicant’s 1^st Withdrawal Letter to the Board on 29 June 2021. Upon receipt of the said letter, the Board wrote to the applicant on 5 July 2021 to advise her that unless she advised the Board otherwise, the Board would presume that: (1) she was applying to withdraw her appeal/petition against the Director’s Decision; (2) she considered that it was safe for her to return to Uganda; and (3) she understood the consequences of the proposed withdrawal. The Board further advised the applicant to seek independent legal advice on the consequences of the proposed withdrawal under her application, and that if the Board did not receive any reply from her on or before 12 July 2021, the Board would consider approving her application for withdrawal.

5.The applicant then wrote a letter dated 7 July 2021 (“the 2^nd Withdrawal Letter”) to the Board to withdraw her appeal/petition. In the 2^nd Withdrawal Letter, the applicant stated that the reason for her withdrawal was that it was safe for her to return to her home country. The applicant also confirmed in the 2^nd Withdrawal Letter that she withdrew the appeal out of her own free will, and that she fully understood the consequences of her withdrawing the appeal, which included: (1) by filing the notice of withdrawal to the Board, she was bringing her appeal to an end even though the merits of which had not been determined; (2) no further action would be taken in relation to the appeal; and (3) the decision that she had appealed/petitioned against would remain in force.

6.In response to the 2^nd Withdrawal Letter, the Board wrote to the applicant on 13 July 2021 to inform her that the Board had given direction that her appeal/petition was withdrawn, the Director’s Decision remained, the applicant’s appeal/petition had been disposed of and finally determined by the Board, and no further action would be taken by the Board in respect of her appeal/petition.

7.At the oral hearing before this court on 2 July 2026, the applicant was at first confused as to which decision she was seeking leave to apply for judicial review, as she could not remember the date of the decision. After the Director’s Decision was explained to her by the interpreter, the applicant confirmed that the Director’s Decision was the one in respect of which she wanted to have leave to apply for judicial review.

Amendments

8.As aforesaid, the applicant confirmed at the oral hearing before this court on 2 July 2026 that the decision in respect of which relief is sought in the Leave Application should be the Director’s Decision. Thus, on this court’s own motion, the decision in respect of which relief is sought is amended to “Director of Immigration’s decision dated 26 November 2018”.

9.Since the Director’s Decision is the subject matter of the Leave Application, the Director should only be the putative respondent and there is no need to add the Director as the putative interested party in Form 86. Thus, on this court’s own motion, the Director is deleted as the putative interested party.

Late application

10.By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Director’s Decision was made.

11.However, the applicant filed Form 86 on 3 August 2021, which was more than 2 years and 8 months after the Director’s Decision (made on 26 November 2018). The applicant was hence late for more than 2 years and 5 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

12.As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

13.The applicant did not make any application for extension of time and provided no explanation for the delay when she filed the Leave Application.

14.At the oral hearing before this court on 2 July 2026, the applicant offered no explanation for her delay either, as she had simply forgotten the date of the Director’s Decision.

15.A delay of more than 2 years and 5 months is very substantial, and there was simply no explanation for the delay. More importantly, there is no merit in the Leave Application at all.

16.Having considered the above criteria, this court is not prepared to grant any extension of time to the applicant to file the Leave Application. The Leave Application can therefore be dismissed on the ground of being made out of time alone.

17.However, for the sake of completeness, this court will still deal with the Leave Application as discussed below.

The applicant’s case

18.The applicant sought non-refoulement protection in Hong Kong because she feared that if returned to Uganda, she would be harmed or killed by her uncle due to a land dispute.

Oral hearing

19.The applicant requested for an oral hearing and her case was heard on 2 July 2026.

20.At the hearing, apart from confirming that she was applying for leave to apply for judicial review in respect of the Director’s Decision, the applicant also confirmed that she had written the 1^st Withdrawal Letter and the 2^nd Withdrawal Letter, and had received the Board’s letter dated 13 July 2021. The applicant said that she made the Leave Application because her uncle was looking for her again.

Grounds for judicial review

21.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).

22.The applicant did not state any ground for her intended judicial review in Form 86, nor in her supporting affirmation dated 3 August 2021. She only attached a letter dated 3 August 2021 to her affirmation stating that the reason for not submitting the decision from the Immigration Department was that she lost it, she had already applied for a copy of the decision from the Immigration Department and she would submit it to the court as soon as possible.

23.As aforesaid, the only reason the applicant gave at the oral hearing for making the Leave Application was that her uncle was looking for her again.

Discussion

24.The question here is whether the withdrawal of the applicant’s appeal/petition was valid or not. As held by the Court of Appeal in Re Das Purnima Rani [2019] HKCA 669, if the withdrawal or abandonment of the appeal is a valid one, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal. On the other hand, where a withdrawal or abandonment is invalid, it would logically be a nullity and, as such, could and would have no effect on the appeal which remains extant so that the Board can and should resume processing the same upon the applicant’s application.

25.From the 2^nd Withdrawal Letter and the Board’s letter dated 13 July 2021, it is clear that the applicant’s application to withdraw the appeal/petition was freely sought and the applicant fully understood the consequences of her withdrawal. The Board was also satisfied that there was good reason for the applicant’s withdrawal, namely that the applicant considered it safe for her to return to her country.

26.No doubt the applicant did make a deliberate and informed decision to withdraw her appeal/petition. There is no evidence to show that the applicant made the withdrawal application other than out of her own volition. The withdrawal of the appeal/petition by the applicant was therefore a valid one.

27.Thus, the applicant had already invoked the statutory procedure in appealing/petitioning against the Director’s Decision to the Board, but validly withdrew the appeal/petition. As a result, the applicant’s non-refoulement claim had been finally disposed of and there is absolutely no ground to challenge the Director’s Decision again. The applicant’s allegation that her uncle was looking for her again is not a ground to challenge the Director’s Decision at all.

28.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, 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

29.For reasons aforesaid, the Leave Application is dismissed for being made out of time and also for devoid of merits.

Dated the 21^st day of July 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