RE HAQUE JAINUL

CACV 240/2026, [2026] HKCA 1375

On appeal from [2026] HKCFI 691

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 240 OF 2026

(ON APPEAL FROM HCAL NO. 2411 of 2020)

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JUDGMENT

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Hon Chu VP (giving the Judgment of the Court):

Background

1.  On 12 March 2026, the applicant filed a Notice of Appeal to appeal the decision given by Deputy High Court Judge (Non-Refoulement Claims) Vincent Lung (“the Judge”) on 27 February 2026, which refused to extend the time for the applicant to apply for judicial review and dismissed his application for leave to apply for judicial review ([2026] HKCFI 691).  The intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 15 April 2020 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 8 March 2018 which refused to re-open the applicant’s non-refoulement claim. 

2.  The appeal was initially fixed for hearing on 28 April 2026.

3.  Pursuant to the directions of the Registrar of Civil Appeals given on 12 March 2026, the applicant was required to lodge two sets of appeal bundle by 26 March 2026.  Upon the applicant’s failure to comply with the directions, Chow JA made an unless order on 30 March 2026 (“Unless Order”), stipulating that unless the applicant lodged with the Court two sets of appeal bundle by 4:00 pm on 8 April 2026, the applicant’s appeal shall stand to be dismissed without further order of the Court and the hearing of the appeal shall be vacated.  The Unless Order was communicated to the applicant by letter of the same date. 

4.  The applicant did not comply with the Unless Order.  The appeal was accordingly dismissed on 8 April 2026 and the hearing date of 28 April 2026 was vacated. 

The applicant’s application

5.  By a letter dated 1 June 2026, the applicant requested that a new hearing date be given for his appeal.  On 12 June 2026, Chu VP directed that the letter be treated as an application for relief from the sanction imposed by the Unless Order and further directed the applicant to lodge written submissions in support of his application.  On 3 July 2026, the Court received an undated letter from the applicant, enclosing an undated written submission and a bundle of documents that comprised a draft summons and a supporting affirmation applying for a review of the Board’s decision as well as the Board’s decision and the Unless Order.

6.  Having considered the papers in the case, we are satisfied that it is appropriate to determine the application on the papers, pursuant to Order 59 rule 14A(1) of the Rules of the High Court, Cap. 4A.      

Our reasons for decision

7.  Under Order 2 rule 5(1), when dealing with an application for relief from the sanction imposed by the failure to comply with a court order, the court shall consider all the circumstances, including, among others, the interests of the administration of justice, whether the application for relief has been made promptly and whether there is a good explanation for the failure to comply.

8.  There is no doubt that immediately upon the filing of the notice of appeal on 12 March 2026, the applicant was already made aware of his obligation to prepare appeal bundles. The applicant explained in his letter dated 1 June 2026 and also the subsequent undated letter that he was detained by the Immigration Department since either 28 or 30 March 2026[1], as a result of which he could not send in his grounds and submissions.  However, by the time of his detention by the Immigration Department, the time for him to lodge appeal bundles pursuant to the directions given on 12 March 2026 and under the Unless Order had both lapsed.  The applicant has offered no explanation as to his failure to lodge the appeal bundles as directed by the Court and/or the Unless Order. 

9.  In the circumstances, we are not satisfied that the applicant has satisfactorily explained his non-compliance with the directions given by the Registrar for Civil Appeals and the Unless Order, such that the Court should exercise its discretion to give relief from the sanction imposed by the Unless Order.   

10.  We are further of the view that, for the reasons given below, the applicant’s appeal has no merits, which is a weighty factor why the Court should not grant relief from the sanction imposed by the Unless Order.    

11.  The applicant is an Indian national aged 49.  He last entered Hong Kong on 4 September 2006 and was given permission to remain for two days.  He later made a torture claim based on fear of being harmed or killed by a person named Bobby Bhai because he had lost a batch of his memory chips during a courier trip. In connection with the torture claim, the applicant had attended an interview with the Immigration Department on 25 November 2010 in the presence of an interpreter and a lawyer assigned by the Duty Lawyer Service (“DLS”). The Director rejected the claim. The applicant appealed the decision by a petition made on 23 December 2010. 

12.  Subsequently, by an undated written representation received by the Immigration Department on 7 November 2014, the applicant made a non-refoulement claim.  By a letter dated 17 May 2017, the Director requested the applicant to complete within 28 days a Supplementary Claim Form (“SCF”) to provide supplementary information for consideration of his non-refoulement claim.  The applicant acknowledged receipt of the letter on the same day.  Upon being informed on 22 May 2017 by the DLS that they acted for the applicant, the Immigration Department wrote to the DLS on 7 June 2017 requesting the applicant to return the SCF by 5 July 2017.  As a result of requests made by the DLS on his behalf by letters dated 4 and 18 July and 1 August 2017, the Director extended the time for the return of the SCF by letters dated 5 and 19 July and 4 August 2017, with the last extension being up to 15 August 2017.  By a letter dated 15 August 2017, the DLS informed the Director that they did not have instruction from the applicant and therefore was unable to act further for him. 

13.  By a letter dated 16 August 2017 to the applicant, the Director informed him that in view of his failure to return the completed SCF within the time limit, his non-refoulement claim was treated as having been withdrawn on 16 August 2017.  The applicant was further informed that if he wished to re-open his claim, he should provide sufficient evidence in writing to satisfy an immigration officer that he had not been able to return the completed SCF as required due to circumstances beyond his control. 

14.  On 12 February 2018, the applicant stated, as part of his grounds of objection against deportation, that he wished to re-open his non-refoulement claim.  In response to this, the Director wrote on 20 February 2018 to the applicant requesting him to provide by 6 March 2018 written information and evidence on: (1) the detailed reason(s) that he had not been able to return the completed SCF as required due to circumstances beyond his control; and (2) the reason(s) that he could not return the SCF within the specified period despite free legal assistance was offered to him by DLS to assist him in making his claim including completion of the SCF. 

15.  The applicant did not provide the information as requested. By a letter dated 8 March 2018, the Director informed the applicant that as no information or document was received from him, and after careful consideration, it was decided not to re-open his non-refoulement claim for the reason that there was insufficient evidence to show that he had not been able to return the complete SCF as required due to circumstances beyond his control.

16.  The Board heard the applicant’s appeal against the Director’s decision at a hearing held on 27 November 2019.  At the hearing, the applicant informed the Board that he knew nothing about the Director’s request to return the SCF, he did not know what it was all about, his brain was not working and functioning, he was not educated and did not understand, and he had no one to help him.  

17.  In dismissing the appeal, the Board considered that while the applicant did not have much education, did not know English and might not be very smart, his situation was no worse than the majority of non-refoulement claimants.  The Board further took into consideration that the applicant had been represented by the DLS until 15 August 2017.  The Board found the applicant failed to provide any evidence to show that he had not been able to return the completed SCF due to circumstances beyond his control.  The Board also found no special circumstances which would make it unjust not to re-open the claim.  

18.  On 9 December 2020, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision. The applicant did not provide any ground for seeking relief.  Order 53 rule 4(1) of the Rules of the High Court requires an application for leave to apply for judicial review to be made promptly and in any event within three months from the date when grounds for the application first arose.  The applicant’s Form 86 was late by more than five months.

19.  The Judge heard the application at an oral hearing held on 21 October 2025.  By a Form CALL-1 dated 27 February 2026, the Judge refused to extend the time to apply for judicial review and dismissed the application for leave to apply for judicial review.  In gist, the Judge was of the view that the applicant had provided no valid ground to challenge the Board’s decision and his intended judicial review had no realistic prospect of success.

20.  The ground of appeal in the Notice of Appeal states that the applicant’s life is still in danger in his home country.  In his written submission in support of the present application, the applicant primarily complained that the Board had disregarded his personal circumstances and explanations, and had failed to act fairly and in accordance with the law. Specifically, he stated that: (1) he was uneducated, ignorant of the legal procedure, and required legal representation and assistance; (2) the Director only sent letters to the DLS and not to him; (3) the Board ignored his medical condition at the hearing; (4) the Board only focused on his evidence but failed to tell him what was its concern; (5) the Board ignored his explanations that he did not receive any letter or form, he was at the material time imprisoned, and he did not know how to read or write English; and (6) the Board did not properly consider or apply the relevant sections under the Immigration Ordinance.

21.  In considering the merits of the applicant’s appeal, we shall have regard to the general principles governing an appeal in a non‑refoulement case which have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In light of the established legal principles set out in the case and the reasons set out below, we are of the view that the appeal has no merits. 

22.  In the first place and importantly, the notice of appeal has not put forward any viable ground of appeal. 

23.  In respect of the matters raised in the submission, the Board’s decision had correctly set out the legal position by reference to section 37ZG and 37ZR of the Immigration Ordinance[2], namely (a) a claim would be treated as withdrawn if the claimant fails to return a completed form as required under section 37Y(2); (b) a claim treated as withdrawn may be re-opened if the claimant provides sufficient evidence in writing to satisfy an immigration officer that due to circumstances beyond the claimant’s control, he had not been able to return a completed claim as required under section 37Y(2); and (3) a claimant may appeal the Director’s decision not to re-open his claim.

24.  As the Board had correctly understood, what it was required by the law to consider is whether the applicant was able to provide sufficient evidence to satisfy an immigration officer that he had not been able to return the completed SCF due to circumstances beyond his control.  Since the applicant had referred to his personal circumstances, including his low education level, lack of knowledge and help, the Board had to consider whether these were sufficient to amount to circumstances beyond his control and they had prevented him from completing and returning the SCF.  In so doing, the Board was entitled to consider how the applicant’s situation compared with other non-refoulement claimants and whether he could have accessed assistance.  We do not accept that the Board was unreasonable or plainly wrong to take the view that the applicant’s situation was not materially worse than other non-refoulement claimants and to place great weight on the fact that the applicant had been offered assistance by the DLS and in fact was represented by the DLS until the expiry of the deadline. 

25.  There is no credible basis for the applicant’s complaint that the Director only communicated with the DLS and never wrote to him, and he had no knowledge about having to complete and return the SCF.  Contrary to his assertions, the Director’s first request for the completion and return of the SCF was made by a letter dated 17 May 2017 that was sent to the applicant directly and the applicant had acknowledged receipt of it.  

26.  It is also not correct to say that the Board did not have regard to the applicant’s personal circumstances and explanations.  Plainly, the Board had taken note of the applicant’s health condition, his low education level, ignorance of the situation and procedure, and he needed help but didn’t get any help.  The Board, as it was entitled to, did not consider those to be sufficient to satisfy the requirements under section 37ZG(3).

27.  Further, it would not have escaped the Board’s attention that the applicant was imprisoned because this fact is apparent from the applicant’s address stated in the Director’s letters to him and it was also mentioned in the letters from the DLS to the Director requesting to extend the deadline for returning the SCF.  In any event, this is not a material factor given that, as shown in its letters to the Director, the lawyer assigned by the DLS was throughout prepared to visit the applicant in prison, and had also scheduled prison visits, to obtain information from him, but in the end, he could not get the applicant’s instruction.  The applicant has also not explained how the fact of his imprisonment had prevented him from giving instruction to the lawyer assigned by the DLS.   

28.  We also do not accept that the Board acted unfairly or in disregard of the applicant’s health condition at the hearing. The Board had taken note of the applicant’s heart and eyesight problems. The Board also had regard to the fact that the applicant had not seen a doctor, his health issues did not appear to be severe or as to prevent his participation in the hearing, and the hearing was not expected to be a long one, given the issue involved was a narrow one.  The Board further considered that nine years had lapsed since the applicant completed the questionnaire for his claim and it would be in his best interest that the appeal be heard without delay.  In our view, these are relevant and proper factors for consideration by the Board.  We see no legal error, irrationality or procedural unfairness in the Board’s decision to proceed with the hearing.      

29.  For the above reasons, the applicant’s complaints that the Board had misapplied the law and its decision was unfair have no substance. 

30.  As the applicant’s appeal has no merits, it would be futile to grant relief, and not in the interest of administration of justice to allow the applicant to proceed with the appeal.  Accordingly, we refuse the application for relief from the sanction imposed by the Unless Order.