LE MINH NGOC v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 237/2022

[2026] HKCFI 771

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 237 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

	consideration of documents only;          or
	consideration of the documents and oral submissions by the Applicant in open court;;

1.  Form 86 be amended, naming only the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office as the Putative Respondent and adding the Director of Immigration as the Putative Interested Party.

2.  The application herein for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 21 April 2022, the Applicant seeks leave to apply for judicial review (the “Leave Application”) of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dated 27 January 2022 (the “Board’s Decision”). By that decision, the Board refused the Applicant’s application for late filing of the Notice of Appeal of the decision of the Director of Immigration dated 6 October 2021 (the “Director’s Decision”), which had rejected his non-refoulement claim.

2.  Unless otherwise specified, the abbreviations and descriptions used in the Board’s Decision, the hyperlink[1] to which is included below, are adopted herein.

3.  The Applicant attended the hearing which took place on 22 January 2026 but indicated that he had nothing to add in respect of the Leave Application.

Discussion

4.  Judicial review does not operate as a further avenue of appeal. The Leave Application operates as a “filtering” process and there is no requirement or expectation to give elaborate reasons for my decision.[2] In seeking to challenge the Board’s Decision, the Applicant ought to have clearly and precisely identified the grounds relied upon in the Form 86 and in his supporting affirmation. As matter stands, both documents are virtually devoid of substance, save for his assertion that he cannot go back to Vietnam as he is in fear of being killed by his creditor(s) since he cannot repay the loan(s). The Applicant has failed to identify any valid or effective public law grounds.[3]

5.  In view of the seriousness of the issues involved, I have reminded myself of the enhanced standard required by law. Despite the Applicant did not advance any valid ground for the intended judicial review, I will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

6.  Section 37ZT(2)(b) of the Immigration Ordinance Cap 115 has been amended in 2021. The present section 37ZT(2) applies to the Applicant’s application before the Board as it was filed after the expiration of the 14-day appeal period and after the commencement of the new Section 37ZT on 1 August 2021[4]. In this regard, the Notice of Appeal is dated 27 October 2021 and the Board only received the same on 29 October 2021.

7.  As the Applicant’s case was not covered by the old section 37ZT(2)(b), it was not necessary for the Board 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 notice of appeal and the evidence relied on in support of the reasons.

8.  According to the Notice of Appeal available to this Court, section 5 thereof does not contain any explanation for the delay. However, the Board appeared to have considered the Applicant’s explanation that the delay was due to his late receipt of the form and the time to fill in the form, but the Applicant did not have any evidence to support his reasons for delay.

9.  The Board also duly considered the fact that the Director’s Decision was sent to the Applicant on 6 October 2021 through the CAT Office Duty Lawyer Service. Under section 37ZV(2)(b) of the Immigration Ordinance Cap 115, the CAT Office Duty Lawyer Service’s Office is conclusively presumed to have received the Director’s Decision on 8 October 2021 being the second working day after it was left thereat.[5] In this respect, the Board again correctly pointed out that the Applicant had provided no evidence to prove that he did not receive the Director’s Decision on 8 October 2021. Nor could the Applicant show that he had exercised all due diligence to file the Notice of Appeal within time, but failed to do so because of circumstances beyond his control. In fact, he did not even provide any evidence and/or reasons for the Board to consider to allow the late filing of the Notice of Appeal.

10.  The Board also took into account the public holiday on 14 October 2021 and the two non-working days when typhoon signal number 8 was hoisted twice in the 14‑day appeal period. The Board found that even if these 3 days were fully taken into account, the Applicant was still late for 4 days in lodging his Notice of Appeal.

11.  The Board was thus correct to point out that the Applicant had a duty to substantiate his application and must comply with every requirement, procedure and condition including the 14-day time limit under section 37ZA(1) of the Immigration Ordinance Cap 115. In any case, the Applicant did not rely on these intervening public holiday and non-working days as a reason for his delay.

12.  In the circumstances, I can discern no error of law or procedural unfairness or irrationality on the part of the Board in exercising its discretion under section 37ZT of the Immigration Ordinance Cap 115.

13.  I also find nothing wrong or unreasonable in the way the Board reached its decision that the Applicant’s application for late filing should not be allowed.

Conclusion

14.  Accordingly, I am not persuaded that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospects of success[6]. I dismiss the Leave Application.

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