Case Document

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HCAL 401/2026

[2026] HKCFI 4890

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 401 OF 2026

BETWEEN

	Saypun, Zuphat	Applicant
	and
	Torture Claims Appeal Board	Putative
		Respondent
	and
	Director of Immigration	Putative
		Interested Party

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 name of the putative respondent be amended to “Torture Claims Appeal Board”, and the name of the putative interested party be amended to “Director of Immigration”.

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 12 February 2026, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 30 January 2026 (“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/2026/HCAL000401_2026_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 (“the NOA”) against the decision of the Director of Immigration (“the Director”) dated 5 May 2022 (“the Director’s Decision”), which rejected his non-refoulement claim on all the applicable grounds under the Unified Screening Mechanism.

3.By section 37ZS of the Immigration Ordinance, Cap 115 (“the Ordinance”), the deadline for filing a notice of appeal with the Board to lodge an appeal against the Director’s Decision was 21 May 2022. The Board did not receive the NOA until 29 December 2025, ie over 3 years and 7 months later. By the Board’s Decision, the Board refused the applicant’s application for late filing of the NOA.

Amendments

4.In Form 86, the applicant named “The Director oF Immigration torture Claims appeal board” as the putative respondent, and “The Director oF Immigration torture Claim APPeal board” as the putative interested party.

5.In fact, only the Board should be named as the putative respondent, and only the Director should be named as the putative interested party.

6.Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.

The applicant’s case

7.It is not necessary for this court to state the details of the applicant’s case here as the Leave Application is only about the applicant’s challenge in respect of the Board’s Decision in refusing his application for late filing of the NOA.

Oral hearing

8.The applicant requested for an oral hearing of the Leave Application and his case was heard on 20 August 2026.

9.The applicant confirmed that he would rely on what were stated in a document annexed to his supporting affirmation dated 12 February 2026 as his grounds for the intended judicial review. When this court asked the applicant to elaborate on those grounds, he merely stated that he borrowed money for his study and he was not able to repay the debt. He added that since he was detained, he could not provide supporting documents from Thailand and could not contact his family there to get supporting documents.

10.When this court asked the applicant what was wrong with the Board’s Decision, he only said that he did not agree with it because it refused his application, there was no additional information to the grounds that were already stated in the said document annexed to his affirmation, he wanted to stay in Hong Kong, he would get arrested once he went back to Thailand, and his relatives told him that the creditors were still looking for him.

Grounds for judicial review

11.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).

12.The applicant did not advance any ground for the intended judicial review in Form 86.

13.In a document annexed to his supporting affirmation dated 12 February 2026, the applicant mentioned a few matters as the grounds for his intended judicial review. The grounds set out in the said document are summarised as follows:-

(1)  The Board’s Decision after hearing was Wednesbury unreasonable or irrational;

(2)  The adjudicator had failed to give any or sufficient reason for dismissing the appeal after hearing;

(3)  His life would be in danger in his home country;

(4)  He believed he had taken his punishment in CIC and he had no criminal record during his stay in Hong Kong.

14.What the applicant said at the oral hearing was in fact irrelevant to the Leave Application, which only concerns the Board’s refusal of the applicant’s late filing of the NOA.

Discussion

15.First of all, Grounds (1) and (2) are factually untrue, as the Board’s Decision was made without a hearing. The applicant’s assertions that the Board’s Decision after hearing was Wednesbury unreasonable or irrational and the adjudicator had failed to give any or sufficient reason for dismissing the appeal after hearing, are simply incorrect.

16.Moreover, Grounds (1) and (2) were advanced without any particulars.

17.The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626). Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.

18.Thus, these general assertions cannot help the applicant at all.

19.As to Ground (3), the applicant’s alleged danger had been assessed by the Director but not the Board. It was in fact not for the Board to consider his danger when making its decision concerning his late filing of the NOA.

20.Ground (4) is simply irrelevant.

21.As said, what the applicant said at the oral hearing before this court was also irrelevant to the Leave Application, as he was only trying to repeat the basis of his claim for non-refoulement protection.

22.Thus, none of the matters that were contained in the document annexed to the applicant’s supporting affirmation, or put forward by him at the oral hearing before this court, could amount to any valid ground to challenge the Board’s Decision.

23.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).

24.Thus, the applicant cannot ask this court to re-assess his non-refoulement claim. His alleged danger in his own country had already been assessed but rejected by the Director.

25.However, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

26.This court is aware that section 37ZT(2)(b) of the Immigration Ordinance, Cap 115, has been amended in 2021. The present section 37ZT(2) no longer requires the Board to consider “any other relevant matters of fact within the knowledge of the Board”. As held by the Court of Appeal, this phrase 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). However, after the amendment, the Board no longer needs to deal with merits as of 1 August 2021 (see Re Mohammed Aslam [2025] HKCA 914).

27.As the applicant’s case was not covered by the old section 37ZT(2)(b), it was correct for the Board not to consider the merits of the applicant’s case. The current section 37ZT(2) only requires the Board to take account of the statement of reasons stated in the application for late filing of the NOA and the evidence relied on in support of the reasons.

28.As can be seen from the Board’s Decision, the Board did fully consider the circumstances of the applicant, the statement of reasons stated in the applicant’s application for late filing of the NOA and the lack of evidence in support of the reasons.

29.The applicant claimed that he did not receive the Director’s Decision. However, the Board found that the Director’s Decision was conclusively presumed to have been served on the applicant on the date it was acknowledged receipt by the Duty Lawyer Service on 5 May 2022.

30.The chronology of enquiry with the applicant was set out in paragraphs 6 to 10 of the Board’s Decision, and it is not necessary to repeat the same here.

31.In conclusion, the Board did not accept that the applicant had exercised all due diligence to file the NOA within the specified period, and that he had failed to file the notice within the period not because of circumstances beyond his control, as specified in Section 37ZT of the Ordinance. Thus, the Board refused the applicant’s application for late filing of the NOA.

32.This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

33.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.

34.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

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

Dated the 26^th day of August 2026

( Gladys LEE )
for Registrar, High Court

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

Notes for the applicant: If leave has been granted, the applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent/Handed to the applicant/the applicant’s solicitors on: 26/08/2026 Applicant’s ref. no: Nil		Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on: 26/08/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 27834 Director of Immigration Putative interested party’s ref. no.: QA T/C 2798/21 (Formerly as RBCZ 5000105/21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)