Nguyen Thi Tam v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 1548/2022 [2026] HKCFI 4409 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1548 of 2022 BETWEEN
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 K.W. Lung:
Observations for the Applicant: THE APPLICATION 1.The applicant applies for leave to apply for judicial review of the Decision dated 8 September 2022 of the Torture Claims Appeal Board (“the Board’s Decision”). Her application is late. Her application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 8 December 2022. Her application was filed on 21 December 2022, which is late for 13 days. This issue will be dealt with below. 2.The applicant requested an oral hearing. However, she was absent at the hearing on 27 July 2026. I shall deal with her application on the papers. 3.This Form CALL-1 is written in English whilst the Board’s Decision was written in Chinese. This is because the applicant attached her grounds to challenge the Board’s Decision in English. The applicant’s late filing of the notice of appeal and the Board’s Decision 4.The applicant is a national of Vietnam. She is an illegal immigrant. She lodged a non-refoulement claim with the Immigration Department. By Decision dated 7 December 2022, the Director refused her claim. She appealed to the Torture Claims Appeal Board (“the Board”) on 27 June 2022. 5.In accordance with section 37ZR and section 37ZV (2) of the Immigration Ordinance, Cap.117 (“the Ordinance”), time expired on 23 December 2022 for the applicant to file the notice of appeal with the Board. [5] The applicant was therefore late in her filing of the notice of appeal with the Board. 6.The applicant explained that she had contracted Covid-19 and had to receive medical treatment. She had stayed in the hospital for one day. However, she did not disclose when she contracted the disease, whether she was detained for quarantine and for how long. The Board considered that under no circumstances should the application be made later than 13 January 2022. The Board therefore found that the applicant was late in filing her notice of appeal. 7.For details of calculation of the time and reasons for refusing the applicant’s application for extension of time to file her notice of appeal, see the Board’s Decision through the hyperlink attached. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL001548_2022_files/the_Board's_Decision.pdf 8.Having considering the relevant statutory provisions and the circumstances of the case, the Board refused to extend time for the applicant to file her notice of appeal, effectively dismissing her appeal. Application for leave to apply for judicial review of the Board’s Decision 9.The applicant has filed Form 86 dated 21 December 2022 for leave to apply for judicial review of the Board’s Decision. 10.To challenge the Board’s Decision, the applicant has raised the grounds that the Board did not consider her right to life; that it had relied too much on the country-of-origin information without considering her personal background and experience; and that it had asked her to answer questions that she was not in a position to offer any response. DISCUSSION 11.As mentioned in paragraph 1, this application is late. In AW v Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider, inter alia, the prospect of the intended appeal. I shall consider the merits of the applicant’s case. 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 applied section 37TZ of the Ordinance to the late filing of the notice of appeal by the applicant. This section was revised and effective on 1 August 2021. At the time of the Board’s Decision on 8 September 2022, the revised statutory provisions applied to the case. The Board had considered the relevant statutory provisions and the applicant’s explanation, and it had given reasons why it did not accept the applicant’s explanations. I do not find any error of law in the application of the law to the case. Nor do I find any procedural unfairness or Wednesbury unreasonableness in the Board’s Decision. 15.The reasons under paragraph 10 are not relevant to the Board’s Decision. The applicant fails to raise any valid reason to challenge the Board’s Decision. 16.The applicant therefore fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision. DISPOSITION 17.I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application. Dated the 12th day of August 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 [1] Delay in applying for relief (O. 53, r. 4)
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Cases cited in this judgment