Kansiime Kabatesi Peace and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 219/2025, [2026] HKCA 1392

On Appeal From [2025] HKCFI 1307

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 219 OF 2025

(ON APPEAL FROM HCAL NO. 2334 OF 2019)

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BETWEEN

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JUDGMENT

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Hon Anthony Chan JA (giving the Judgment of the Court) :

1.This is the Applicants’ appeal against the order of Deputy High Court Judge To (“Judge”) dated 8 April 2025 (“Order”) refusing to grant leave to apply for judicial review (“Leave Application”) in HCAL 2234/2019 against the decision of the Torture Claims Appeal Board (“Board”) dated 3 June 2019 (“Board’s Decision”). The Judge handed down a decision dated 8 April 2025 (“Leave Decision”). By the Board’s Decision, the Board refused the Applicants’ applications for late filing of their Notices of Appeal/Petition (“NOAs”) dated 24 February 2017 (“Late Filing Applications”). The Applicants had intended to appeal the decision of the Director of Immigration (“Director”) dated 24 January 2017 (“Director’s Decision”) rejecting their non-refoulement claims.

2.This appeal was scheduled to be heard on 26 March 2026. At the request of the Applicants (to which the Director did not object) [1], the hearing was adjourned sine dine with liberty to restore on 12 March 2026 pending inter alia the negotiation between the Applicants and the Director for alternative disposal of this appeal. Earlier, the Board had indicated that it would take a neutral stance in these proceedings and sought to be excused from any hearing in the same[2].

3.Subsequently, the Applicants and the Director informed this Court that they had reached an agreement that this appeal should be allowed “on the ground that the [Judge] failed to find that the [Board] did not consider the substantive merits of the Applicants’ claims in deciding whether to allow the [Late Filing Applications]…” and invited this Court to allow the appeal by consent through a joint letter dated 29 May 2026 (“Joint Letter”).

4.In the Notice of Appeal dated 17 April 2025, the Applicants did not state any ground of appeal. At the time, they were not legally represented.

5.Having considered the documents before us, we consider that it is appropriate to deal with the Applicants’ appeal on paper without an oral hearing.

6.The Applicants are nationals of Uganda. The 1^st Applicant is the mother of the 2^nd and 3^rd Applicants. In gist, the basis of their non-refoulement claims is that they are in fear of being harmed or killed by other Ugandans if they return to the Republic of Uganda and by the 1^st Applicant’s ex-husband if they return to the Republic of Rwanda[3]. The background facts regarding the Applicants and the details of their non-refoulment claims have been summarised in the Director’s Decision, [7]-[12]. We do not repeat the same here.

7.The deadline for the Applicants to file the NOAs was 8 February 2017 but they did not file them until 24 February 2017. Hence, the Applicants were 16 days late in filing the NOAs[4].

8.The version of sections 37ZT(2) and (3) of the Immigration Ordinance, Cap.115 (“Ordinance”) in force at the time of the Board’s Decision on 3 June 2019 was the following :-

“(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—

(a) the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence relied on in support of those reasons; and

(b) any other relevant matters of fact within the knowledge of the Board.

(3) If the Appeal Board is satisfied that by reason of special circumstances, it would be unjust not to allow the late filing of the notice of appeal, the Board may allow the late filing of the notice and must, by written notice, inform the person filing the notice of the Board’s decision.”

[Emphasis added]

9.This past version of section 37ZT(2)(b) of the Ordinance required the Board to take into account “any other relevant matters of fact within the knowledge of the Board”. Under section 37ZT(3) of the Ordinance, the Board also had to be satisfied there were no “special circumstances” that would make it “unjust” not to allow the late filing application. Therefore, it was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take into account the merits of the Applicants’ claims (for appeal against the Director’s Decision refusing their non-refoulement claims) regardless of the procedural breaches or the lack of explanation therefor: see Re Khan Kamal Ahmed [2019] HKCA 377 at [16-20, 22]; Re Qasim Ali [2019] HKCA 430, [23-26].

10.From the Board’s Decision[5], it can be seen that the Board was only concerned with the Applicants’ explanation for the delay in filing the NOAs (which was rejected) and the merits of the Late Filings Applications.

11.We note paragraph 21 of the Board’s Decision (reproduced below) :

“21. In case there might be other matters of fact which might explain the Claimant’s delay in filing the NoAP, I have also considered the factual basis of their claims as outlined in the decision dated 24 January 2017. The factual basis relied upon by the Claimant does not disclose any special circumstances by reason of which it would be unjust not to allow the late filing of the appeal/petition.”

12.We do not believe that Board’s Decision, [21] demonstrates that the Board had considered the merits of the Applicants’ claims: see Re Qasim Ali, [11, 25], Re Mohammed Aslam [2025] HKCA 914, [13, 16]. Nowhere in the Board’s Decision did the Board set out what aspects of the factual basis concerning the Applicants’ non-refoulment claims or what circumstances it considered in arriving at the conclusion in Board’s Decision, [21].

13.Turning to the Leave Decision, the Judge only considered the merits of the Applicants’ explanation for the delay in filing the NOAs[6]. There was no consideration by the Judge in the Leave Decision of the Board’s failure to consider the merits of the Applicants’ claims when exercising its discretion in respect of the Late Filing Applications. With respect, this was wrong in law and this appeal ought to be allowed on this basis alone.

14.It is trite that this Court will only allow an appeal by consent where it is satisfied that it is appropriate to do so: A & Ors v Torture Claims Appeal Board/Non-refoulement Claims Petition Office & Anor [2024] HKCA 471, [30].

15.For the reasons above, we are satisfied that it is appropriate to allow the Applicants’ appeal by consent.

Disposition

16.Having considered the proposed orders submitted in the Joint Letter, we make the following order :

(1)  The Applicants’ appeal be allowed;

(2)  The Order of Deputy High Court Judge To dated 8 April 2025 be set aside;

(3)  Leave be granted to the Applicants to apply for judicial review against the Putative Respondent’s decision dated 3 June 2019 dismissing the Applicants’ applications for late filing of their Notices of Appeal/Petition dated 24 February 2017 (“Applications”) (“Decision”);

(4)  The Decision be brought up and quashed; 

(5)  The Applications be remitted to the Putative Respondent (differently constituted) for fresh determination;

(6)  There be no order as to costs of these proceedings (including this application to allow the appeal by consent); and

(7)  The Applicants’ own costs be taxed in accordance with the Legal Aid Regulations.

Patricia Ho & Associates, assigned by the Director of Legal Aid, for the 1^st to 3^rd Applicants

Mr Felix Lee, Senior Government Counsel, of the Department of Justice, for the Putative Interested Party