Case Document

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HCAL 976/2024

[2026] HKCFI 5798

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 976 OF 2024

BETWEEN

	Dizon Ailyn Wagayen	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 or counsel 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”.

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 21 June 2024, 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 8 October 2020 (“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/2024/HCAL000976_2024_files/the_Board's_Decision.pdf

2.The Board’s Decision was in respect of the applicant’s late filing of the Notice of Appeal/Petition (“the NOAP”) against the decision of the Director of Immigration (“the Director”) dated 14 January 2019, which rejected the applicant’s non-refoulement claim together with the applicant’s daughter’s non-refoulement claim on all the applicable grounds under the Unified Screening Mechanism.

3.The deadline for the filing of the NOAP was 28 January 2019. However, the Board only received the applicant’s NOAP on 12 September 2019, which was over 7 months out of time. In the Board’s Decision, the Board refused the applicant and her daughter’s application for the late filing of the NOAP.

Amendment

4.In Form 86, the applicant named “The Torture Claim Appeal Board” and “Non-Refoulement Claim Petition office” as the putative respondents, when only the Board should be so named.

5.The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a putative respondent at all.

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

Late application

7.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.

8.However, the applicant filed her Form 86 on 21 June 2024, which was more than 3 years and 8 months after the Board’s Decision (made on 8 October 2020). The applicant was hence late for more than 3 years and 5 months in making the Leave Application.

9.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.

10.The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application.

11.A delay of more than 3 years and 5 months is extremely substantial, and there is simply no reason for this court to extend the time for the applicant to make the Leave Application when no explanation was given for the delay at all. More importantly, there is no merit in the Leave Application whatsoever as discussed below.

12.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.

13.However, for the sake of completeness, this court will still deal with the Leave Application.

The applicant’s case

14.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 on the Board’s Decision in refusing her application for late filing of the NOAP.

15.In sum, the applicant together with her daughter claimed for non-refoulement protection because if refouled to the Philippines, they would be harmed by the applicant’s husband and the New People’s Army.

Disposal on paper

16.The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper.

Grounds for judicial review

17.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).

18.The applicant did not advance any ground for the intended judicial review in Form 86, nor in her supporting affirmation dated 21 June 2024. She only stated in Form 86 and the said affirmation that she was not satisfied with the Board’s Decision.

Discussion

19.First of all, the applicant’s mere comment that she was not satisfied with the Board’s Decision cannot help her. She did not state why the Board’s Decision was wrong or how the Board had erred in its consideration of her late filing of the NOAP.

20.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).

21.Thus, 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.

22.First, this court notes that the applicant had indicated to the Director that her own claim and her daughter’s claim for non-refoulement protection should be considered as a joint application.

23.Nevertheless, the applicant made the Leave Application by herself, and her daughter was not named as an applicant. Thus, this court will deal with the Leave Application of the applicant only, and scrutinize the Board’s Decision in respect of the applicant’s case.

24.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).

25.Nevertheless, the applicant’s case was covered by the old section 37ZT(2)(b). Therefore, the Board was required to take account of the merits of the applicant’s appeal.

26.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 NOAP, the lack of evidence in support of the reasons and more importantly, the merits of the applicant’s appeal.

27.The Board had given full reasons in paragraphs 21 to 27 of the Board’s Decision for its rejection of the reasons given by the applicant for the delay and the conclusion that the reasons were unsound. This court finds no flaw in the Board’s reasoning in rejecting the applicant’s reasons for the delay.

28.With regards to the Board’s assessment of the merits of the applicant’s case and her appeal, the Board had given a detailed description of the basis of applicant’s claims within the Board’s knowledge in paragraphs 29 to 52 of the Board’s Decision.

29.The Board then laid out its consideration of the merits of the applicant’s claim in paragraphs 53 to 71 of the Board’s Decision, and gave full and justified reasons to find that the applicant’s claims had little merits, let alone merits sufficiently clear to make it unjust to refuse the application for late filing of the NOAP.

30.This court finds nothing wrong or unreasonable in the way the Board reached its conclusion regarding its assessment of the merits of the applicant’s own claims and appeal.

31.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 with regards to its refusal of the applicant’s late filing of the NOAP.

32.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

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

Dated the 14^th day of October 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: 14/10/2026 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: 14/10/2026 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative respondent’s ref. no.: USM 16299/19/9/55/F1100 Director of Immigration Putative interested party’s ref. no.: QA T/C 4766/18 (Formerly RBCZ 10383/18) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)