Case Document

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HCAL 9/2021

[2026] HKCFI 5337

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 9 OF 2021

BETWEEN

	Humayun SK	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 counsel for the applicant in open court;

Order by Deputy High Court Judge Michael WONG:

1.  The time for filing the applicant’s application for leave to apply for judicial review be extended to 5 January 2021.

2.  Leave granted to the applicant to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 14 November 2019.

3.  The applicant is directed to issue an originating summons for the intended judicial review on or before 7 October 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated and filed on 5 January 2021, 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 14 November 2019 (“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/2021/HCAL000009_2021_files/the_Board's_Decision.pdf

2.The Board’ Decision was in respect of the applicant’s late filing of his Notice of Appeal/Petition (“NOAP”) against the Further Decision of the Director of Immigration (“the Director”) dated 16 November 2016, which rejected the applicant’s non-refoulement claim on the ground of BOR 2 Risk[1] under the Unified Screening Mechanism.

3.The applicant filed his NOAP to the Board on 4 October 2017. The Board considered that the NOAP was filed 10 month and 2 days late, and refused the applicant’s late filing of the NOAP by the Board’s Decision.

Amendments

4.By way of summons dated 11 September 2026, the applicant applied, inter alia, for leave to amend his Form 86. This court granted leave to the applicant at the oral hearing of the Leave Application on 15 September 2026 to amend Form 86 as per the draft submitted at the hearing. The Amended Form 86 was filed on 16 September 2026.

Late application

5.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 Board’s Decision was made.

6.However, the applicant filed his Form 86 on 5 January 2021, which was more than 13 months after the Board’s Decision (made on 14 November 2019). The applicant was hence late for more than 10 months in making the Leave Application.

7.This court has to consider whether the time for the applicant to make the Leave Application should be extended taking into account of the criteria laid down in AW v Director of Immigration [2016] 2 HKC 393, which 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.

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

9.On 18 November 2025, the Director of Legal Aid issued a Legal Aid Certificate to the applicant in these proceedings. Since then, the applicant was legally represented before this court.

10.By way of the said summons dated 11 September 2026, the applicant applied for an extension of time to file the Leave Application.

11.In paragraphs 9 to 13 of the applicant’s 2^nd affirmation dated 11 September 2026, the applicant explained the delay by saying that he did not receive the Board’s letter containing the Board’s Decision at his Lucky House Address as he had moved by November 2019 without informing the Director. The applicant also mentioned that when he completed the original Form 86, he only had limited ability to read and understand written English and was acting without legal assistance. He first learnt of the Board’s Decision in or about December 2020 or January 2021, when an officer at the Castle Peak Bay Immigration Centre informed him that his late filing application had been refused, and he only obtained a copy of the Board’s Decision in or about January 2021.

12.In essence, the applicant’s excuses for the delay in making the Leave Application were that he had moved from his reported address and he had limited understanding of English and court procedures.

13.A delay of more than 10 months is very substantial, and the explanations given by the applicant are not satisfactory. The applicant is under a duty to report his new residential address to the Director whenever there is a change, and lack of language assistance and ignorance of court procedures are generally not excuses.

14.However, as discussed below, this court is of the view that there are merits in the Leave Application. In view of the high standards of fairness required in the handling of non-refoulement claims, this court will grant an extension of time to the applicant to file the Leave Application out of time on 5 January 2021.

The applicant’s case

15.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 NOAP.

16.In sum, the applicant claimed for non-refoulement protection because if refouled to India, he would be harmed or killed by politically connected persons who remained in power and had threatened to kill or harm his family.

Oral hearing

17.The applicant requested for an oral hearing of the Leave Application and his case was heard on 15 September 2026.

18.As aforesaid, the applicant was granted legal aid on 18 November 2025. He was represented by counsel at the hearing.

19.Counsel for the applicant confirmed at the hearing that the applicant would rely on one single ground as stated in the Amended Form 86 for his intended judicial review, namely, the Board’s failure to undertake the required independent paper assessment of the merits of the applicant’s case; alternatively, the Board’s reasons do not disclose such an assessment.

Grounds for judicial review

20.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).

21.As aforesaid, counsel for the applicant confirmed that the applicant relied only on one ground as mentioned above.

Discussion

22.As submitted by counsel for the applicant, the Court of Appeal had repeatedly held that under the then section 37ZT(2)(b) of the Immigration Ordinance, Cap 115, the Board should have taken account of the merits of the appeal/petition, because the words “any other relevant matters of fact within the knowledge of the Board” required the Board to do so (see Re Khan Kamal Ahmed [2019] HKCA 377 and Re Qasim Ali [2019] HKCA 430).

23.It is clear from the Board’s Decision that the Board did not consider the merits of the applicant’s petition, including the merits of the applicant’s non-refoulement claim itself.

24.The Board only followed the principles as laid down in The Secretary of State for the Home Department v Begum (2016) ECWA Civ 122 (3 March 2016) to consider whether the applicant’s application for late filing of the NOAP should be allowed.

25.However, as can be seen from paragraph 18 of the Board’s Decision, in evaluating all the circumstances of the applicant’s case, the Board only stated that:-

“The Director in the Notice of Further Decision had reviewed his claim and found that the evidence in his claim clearly did not engage BOR 2 risk, which applied to death sentence and genocide, and the Director was satisfied that he had not established a personal and real risk of being arbitrarily deprived of his life in violation of BOR 2 upon his return to India. Following the 3^rd stage referred to in Begum, I evaluated all the circumstances in this case and arrived at the conclusion that it is fair and just to refuse the Petitioner’s application.”

26.In Re Mohammed Aslam [2025] HKCA 914, the Court of Appeal held that the Board had not properly considered the merits of the applicant’s case, despite the words of the Board that it had evaluated all the circumstances, or that there were no other matters known which might make it unjust not to allow for late filing. Likewise, what the Board said in the Board’s Decision could not be regarded as a proper consideration of the merits of the applicant’s case.

27.In failing to consider the merits of the applicant’s case, the Board did not take account of other relevant matters of fact within its knowledge as required by the then section 37ZT(2)(b). The Board had therefore committed an error of law in the Board’s Decision. This error of law alone is a sufficient reason for the applicant’s intended judicial review to be reasonably arguable.

28.As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the court should grant leave to apply for judicial review when the claim is a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that there are realistic prospects of success for the applicant’s intended judicial review in respect of the Board’s Decision and hence leave is granted to the applicant to proceed with the intended judicial review.

29.For the sake of completeness, this court notes that the Director had plainly committed an error of law in stating that the evidence in the applicant’s claim clearly did not engage BOR 2 risk, which applied to “death sentence and genocide”.

30.As held by the Court of Appeal in Kulwinder Kaur v Director of Immigration and another [2022] HKCA 48, “The authorities establish that the right to life is also violated by extra-judicial killings by State agents or by non-State actors, where the State fails to take steps to avoid a threat to life emanating from non-State actors or private persons.” Thus, violation of right to life is not confined to imposition of death penalty or genocide by a State as conceived by the Director.

31.The Board’s recital of the Director’s conclusion in paragraph 18 of the Board’s Decision, which was followed by the Board’s statement that it had evaluated all the circumstances in the applicant’s case and arrived at the conclusion that it was fair and just to refuse the Petitioner’s application, could be indicative of the Board’s agreement of the Director’s interpretation of BOR 2 as aforesaid. Hence, it could be an error of law on the part of the Board as well.

32.Lastly, this court noticed that the adjudicator, Mr LI Wai Chi, signed the Board’s Decision as “Adjudicator of the Non-refoulement Claims Petition Office” instead of “Member of the Torture Claims Appeal Board”. This is not a correct description of his capacity, as he was not making the determination on behalf of the Non-refoulement Claims Petition Office. The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the members of the Board and does not have the capacity to determine non-refoulement claims itself.

33.Under the USM, the Chief Executive has delegated his powers under Article 48(13) of the Basic Law to members of the Board to hear and determine petitions in relation to claims made on all applicable grounds other than Torture Risk (see paragraph 3.7 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme). Thus, only the members of the Board have the powers to determine whether the applicant’s application for late filing of his NOAP should be allowed.

34.Nevertheless, the wrong description of his capacity does not nullify the Board’s Decision, as Mr LI was indeed a member of the Board and did have the power to determine the applicant’s application for the late filing of his NOAP.

Conclusion

35.For reasons aforesaid, extension of time is granted for the applicant to file the Leave Application on 5 January 2021, and leave is granted for the applicant to apply for judicial review in respect of the Board’s Decision.

36.The applicant is directed to issue an originating summons for the intended judicial review on or before 7 October 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court.

Dated the 23^rd day of September 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: 23/09/2026 Applicant’s ref. no: KM/11387/2025		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: 23/09/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: BOR 1000/17/10/3/IN259 Director of Immigration Putative interested party’s ref. no.: RBCZ 9000561/16 (Formerly RBCZ 1495/07) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)