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HCAL 1452/2021
[2026] HKCFI 3588
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1452 of 2021
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BETWEEN
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Jallow Patch alias Jallow Pateh |
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 K.W. Lung:
1. The extension of time for the application for Judicial Review be refused; and
2. The application for leave to apply for Judicial Review be dismissed.
Observations for the Applicant:
The previous application
1. This application should be considered together with HCAL 289 of 2021 (“the previous application”).
2. In the previous application, the applicant lodged his non-refoulement with the Director of Immigration (“the Director”). He failed to submit the notice of non-refoulement claim (“NCF”) to the immigration officer in accordance with sections 37Y(2) and 37ZG of the Immigration Ordinance (“the relevant statutory provisions”) despite several requests by the immigration officer. He was deemed to withdraw his claim. He had, on several occasions, applied to the Director to re-open his claim. Finally, the Director refused his application for re-opening his withdrawn claim. I shall set out the brief facts below; the details are set out in the Board’s Decision. See hyperlink. https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001452_2021_files/the_Board's_Decision.pdf
3. The applicant failed to submit the NCF to the immigration officer and he was deemed to withdraw his claim on 22 February 2016.
4. On 12 March 2016. He applied to re-open his claim. The Director acceded to his request. He was represented by a duty lawyer. The duty lawyer then advised that he did not have instructions to act for him. He failed to submit the NCF to the immigration officer. He was therefore deemed to withdraw his claim on 20 November 2016.
5. On 15 December 2016, he wrote a letter in English and requested for re-opening his claim.
6. On 19 May 2017, he was informed that his case was re-opened and he was required to complete the NCF and returned it to the immigration officer by 2 June 2017.
7. On 11 July 2017, the duty lawyer advised the immigration officer that the applicant insisted on the service of either a Mandinka or Peul Fula speaking interpreter for completing the NCF.
8. The immigration officer refused to accept this reason because he was satisfied that the applicant was able to communicate in English.
9. The applicant failed to submit his NCF and was deemed to withdraw his claim on 5 October 2017.
10. By 2 submissions in English respectively made on 9 and 10 May, 2019 to the immigration officer, the applicant requested to re-open his claim. His reasons in support were that he was taken to court several times; that he was confused and that he could not concentrate on the NCF.
11. By Notice of Decision dated 24 May 2018 (“the Director’s Decision”), the Director refused his application for re-opening his claim.
12. He appealed against the Director’s Decision to the Board.
13. By Decision dated 22 November 2018 (“the Board’s Decision”), the Board agreed with the Director and dismissed his appeal.
14. By Form 86 filed on 5 March 2021, the applicant applied for leave to apply for judicial review of the Board’s Decision. However, before the court heard his application, he applied to the court to withdraw his application.
15. By Order dated 30 April 2021, the court granted leave to the applicant to withdraw his previous application. The court did not dismiss or strike out his application under the powers under Order 21, rule 3 of the Rules of the High Court[1] (“RHC”).
This application
16. Instead of applying to the court for restoring his claim, the applicant filed another Form 86 on 19 October 2021 to apply for leave to apply for judicial review of the Board’s Decision.
17. Under Order 21, rule 4 of the RHC[2], the applicant may commence a subsequent action for the same claim. This may be for the reason that the substance of the previous action had not been adjudicated upon by the court. However, this application is late. Time for his application expired on 22 February 2019[3]. His application was filed on 19 October 2021, which is late for more than two and a half years. This will be dealt with below.
18. A hearing was fixed on 11 May 2026 for the applicant. He was absent. Another hearing was fixed on 8 June 2026. Again, he was absent. I shall deal with his application on paper.
19. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.
20. In the applicant’s affirmation in support of this application, the applicant did not raise any specific reasons to challenge the Board’s Decision. He simply said that his life will be in danger if he returns to his country.
Discussion
21. As mentioned in paragraph 17, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the court has to consider, inter alia, the prospect of success of the intended application. I shall consider the merits of the applicant’s application.
22. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
23. Since he has not submitted his NCF, there is no fact in support of his claim. The question therefore turns on whether it was right for the Director and the Board not to allow his application for re-opening his withdrawn claim under the above circumstances and the relevant statutory provisions.
24. He has not disputed the facts of the procedures in his previous claim. Nor did he offer any explanations for his so doing or his delay in this application.
25. In my view, his delay or reluctance to submit his NCF verges on an abuse of the procedures for his non-refoulement claim.
26. From the procedural history, the Director has exercised his great restraint from refusing his application for re-opening his claim withdrawn by his failure of submitting the NCF. The Board agreed with the Director and dismissed his appeal.
27. There is no reason for this Court to interfere with the Board’s Decision.
DISPOSITION
28. I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision.
29. Even if time is extended for the applicant to file Form 86, I find that there is no merit in his intended judicial review of the Board’s Decision. Accordingly, I dismiss his application.
Dated the 24th day of June 2026
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(Allen LEE)
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 24/6/2026
Jallow Patch alias Jallow Pateh
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 24/6/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11782/18/5/367/GA101
Director of Immigration
Putative Interested Party’s ref. no.: RBCL/2567/14 (CZ)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Discontinuance of action, etc., with leave (O. 21, r. 3)
(1) Except as provided by rule 2, a party may not discontinue an action (whether begun by writ or otherwise) or counter-claim, or withdraw any particular claim made by him therein, without the leave of the Court, and the Court hearing an application for the grant of such leave may order the action or counterclaim to be discontinued, or any particular claim made therein to be struck out, as against any or all of the parties against whom it is brought or made on such terms as to costs, the bringing of a subsequent action or otherwise as it thinks just.
[2] Effect of discontinuance (O. 21, r. 4)
Subject to any terms imposed by the Court in granting leave under rule 3, the fact that a party has discontinued an action or counterclaim or withdrawn a particular claim made by him therein shall not be a defence to a subsequent action for the same, or substantially the same, cause of action.
[3]. Delay in applying for relief (O. 53, r. 4)
(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. (L.N. 356 of 1988)
(2) Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.
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