PHAM THI AN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 251/2022

[2026] HKCFI 801

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 251 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 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 25 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 7 April 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 18 February 2021 (the “Director’s Decision”), which had rejected her non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).

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 she 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 her supporting affirmation. As matter stands, both documents are virtually devoid of substance, save for a bare assertion that the Decision “has been reached unfairly without allowing [the Applicant] an opportunity to clarify [her] case and situation in [her] country”. 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 Applicant only lodged her Notice of Appeal on 18 November 2021 i.e. almost 9 months late.

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.  As can be seen from the Board’s Decision, the Board did fully consider the statement of reasons stated in the Applicant’s application for late filing of the Notice of Appeal. The Board had explained why her failure to lodge her appeal for so many months was inexplicable. In particular, the Applicant did not provide any medical evidence to suggest that the period of her illness could possibly have lasted for 9 months. The Board also rightly pointed out that the Director’s Decision was sent to her legal representatives and must have been provided to her by them. In such circumstances, the Applicant clearly had an avenue of assistance or at least of signposting to relevant information if necessary.

9.  The Board also found that it was not necessary to clarify any ambiguities in the Applicant’s evidence. The Board found that the Applicant had not exercised due diligence to file the Notice of Appeal within the required time. The Board was also not satisfied that she failed to do so due to circumstances beyond her control.

10.  In any event, the Board did have regard to the merits of the Applicant’s case and so it cannot be faulted[5]. The Board duly considered the grounds of appeal advanced by her and her application for non-refoulement claim. The Board was plainly aware of the Applicant’s claim based on her fear that she would be harmed due to owing money to a loan shark, who had once beaten her for failure to repay the loan. It was after evaluating the Applicant’s evidence and/or circumstances of the case, including the fact that her immediate family have not been harmed, the loan shark is not linked in any way with the State or authorities in Vietnam and the background country information, which was not disputed by the Applicant, that the Board also concluded the Applicant’s claims did not meet the grounds for non-refoulement protection in Hong Kong.

11.  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.

12.  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

13.  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