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HCAL 1230/2022
[2026] HKCFI 1623
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1230 OF 2022
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BETWEEN
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Monses Maybelyn Pacubas |
Applicant |
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and |
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Torture Claims Appeal Board/ |
Putative |
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Non-refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge (Non-refoulement Claims) Jeffrey Chau:
1. Form 86 be amended, naming only the Director of Immigration as the putative interested party.
2. The Applicant’s application for extension of time to file the application for leave to apply for judicial review be refused.
3. The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
Introduction
1. By a Form 86 filed on 9 November 2022 (the “Form 86”), the Applicant applied for leave to apply for judicial review against the decision by the Torture Claims Appeal Board (the “TCAB”) dated 10 December 2021 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 15 June 2021 (the “DOI Decision”).
2. I amend the Form 86 on my own motion to name only the DOI as the putative interested party.
3. The Applicant requested for a hearing of this application and attended the same. When asked why the Form 86 was filed late, she said that she did not receive any letter and had to go to the Immigration. She could not recall the exact date when she went there but she believed that it was around August of 2022. The Applicant added that she was told to appeal.
Background
4. The Applicant is a national of the Philippines. In gist, she fears that she would be ill-treated or even be killed by her boyfriend if she were to return to the Philippines. The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision, which can be viewed through a hyperlink[1]. I shall therefore not repeat them. Unless otherwise specified, the TCAB’s abbreviations and descriptions are adopted herein.
Legal Principles
5. The leave application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23]. It is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.
6. I remind myself that in a judicial review, this court does not provide a further avenue of appeal. While I also remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinizing the decision of the TCAB given the seriousness of the issue at hand, this court would not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and this court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)]. There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.
7. In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (unreported, HCAL 21/2015, 22 December 2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.
8. Given RHC O 53 r 4(1) and s 21K(6) High Court Ordinance (CAP 4A), where an Applicant applies for leave to apply for judicial review more than 3 months after the decision:
a. The failure to apply within 3 months constitutes “undue delay”. To justify an extension of time in which to apply for leave, the Applicant must show “good reason” to extend time. In deciding this, certain factors that are likely to be significant are (i) the length of the delay (ii) the explanation for the delay [[2]] (iii) the merits of the substantive application [[3]] (iv) prejudice, and (v) whether the application raises questions of general public importance;
b. Where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review. The refusal of an extension of time is part and parcel of a refusal to grant leave to apply. It is not the case that the court refuses the extension of time as a discrete decision and then makes no decision on the question of leave to apply for judicial review, treating this as a separate matter entirely;
c. If the court is satisfied that there is good reason for extending the period, it does not follow that leave to apply for judicial review will automatically be given. While the court might grant leave, it retains a discretion to refuse to do so and the existence of a good reason for undue delay is only one facet of the question, others including sufficiency of interest and the need to satisfy the arguability test. Leave may also be refused on the basis that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration; and
d. Even if leave to apply is granted, the issue of undue delay on the part of the applicant may be raised again at the substantive hearing of the judicial review application. That is a separate consideration of whether relief should be refused on the basis that the court thinks that relief would be likely to cause substantial hardship or prejudice to the rights of another or be detrimental to good administration.
See Thing Sunil v TCAB [2025] HKCFI 4366, at [9] citing AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) at [23 to 36], Thomas Lai [2014] 6 HKC 1 at [43 to 45] as also cited in AW, supra), and H v Director of Immigration (2020) 23 HKCFAR 248 at [17-22, 36-44] citing inter alia both AW and Thomas Lai. See also Re Hariatiningsih [2021] HKCFI 1194 at §§12-13, 16-19 citing the aforesaid, upheld in [2022] HKCA 1321.
Discussion
9. The Application was out of time for around 8 months.
10. Having considered the matters below, applying the well-known principles stated above, I decline the request to extend time.
11. She has not given any reason as to the delay in writing. When she was offered an opportunity to explain the delay during the hearing, she claimed that she had not received the letter at the time and was told to go to the Immigration to appeal. While her account was vague as to the specifics, overall her explanation was not unreasonable.
12. However, I am not satisfied that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676), and I would have dismissed the present application even if it had been brought within time.
13. The Applicant did not state any grounds on which the relief is sought, and hence did not point to any error of law, procedural unfairness or irrationality of the TCAB Decision in the Form 86.
14. As can be seen from the TCAB Decision, the TCAB took into account all the evidence available and found that on the basis of the same, applying the correct legal principles in respect of all applicable grounds under the Unified Screening Mechanism, the Applicant’s allegations were insufficient to make out any of the applicable grounds [27‑60]. In particular, the TCAB found that the Applicant’s version of events were not credible as her case was both vague and unbelievable in both her oral evidence and her written case [38]. Upon assessment of all material evidence, the TCAB considered that there was no real chance for her to be harmed and, in any event, state protection and relocation would be made available to her [58-60].
15. All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny. I would have dismissed the application in any event.
16. Further, an extension of time for an unmeritorious application such as the present one, coupled with the gross delay, would result in further undue delay, prove prejudicial, and undermine the orderly conduct and progress of the refoulement process.
17. In light of the foregoing, no extension of time is granted and the application is dismissed.
Dated the 26th day of March 2026
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(Annson CHEUNG)(Ms)
for Registrar, High Court
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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 the Applicant’s solicitors must:
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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)).
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Sent to the Applicant
on 26/3/2026
Monses Maybelyn Pacubas
Applicant’s ref. no:
Nil. |
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Sent 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 26/3/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 18180/21/6/158/F1303
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 505/21 (formerly RBCZ 10193/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL001230_2022_files/the_Board's_Decision.pdf
[2] In that the presence of a credibly valid explanation for the delay will strengthen, and the absence of an acceptable explanation will weaken, the Applicant’s request for what is an indulgence to be granted in the court’s discretion.
[3] Although where an applicant is many months out of time, leave may be refused however strong the complaint might otherwise be, and an applicant who sleeps upon his rights may be barred from pursuing them in a judicial review even though he may have a meritorious case (AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) at §27(iii) as approved in the other cases cited below, in particular H v Director of Immigration (2020) 23 HKCFAR 248 at supra at §37(2)).
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