JENELIE GASCON CORDERO v. TORTURE CLAIMS APPEAL BOARD

HCAL 926/2020

[2025] HKCFI 2889

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 926 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

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

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board”, “Director of Immigration” be added as the putative interested party, and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 8 March 2018”.

2.  The time for the applicant to file her application for leave to apply for judicial review be extended to 18 May 2020.

3.  Leave granted to the applicant to apply for judicial review in respect of Torture Claims Appeal Board’s decision dated 8 March 2018.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated 30 April 2020 and filed on 18 May 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision described as “(FINAL) DISMISSED MY APPEAL OF TORTURE CLAIMS APPEAL BOARD DISMISSED MY PETITION SEEKING JUDICIAL REVIEW Nov. 28, 2019”. However, there was no such decision dated 28 November 2019 in relation to the applicant’s non-refoulement claim.

2.  In fact, the Torture Claims Appeal Board ("the Board") only made one decision dated 8 March 2018 (“the Board's Decision”) in respect of the applicant’s intended appeal/petition to the Board. The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000926_2020_files/the_Board's_Decision.pdf

3.  In the Board’s Decision, the Board refused the applicant’s application for late filing of her Notice of Appeal/Petition dated 6 June 2017 but filed on 7 June 2017 (“the Notice”), which was intended for the appeal/petition against the decision of the Director of Immigration (“the Director”) dated 15 April 2016 (“the Director’s 1^st Decision”).

4.  In the Director’s 1^st Decision, the Director rejected the applicant’s non-refoulement claim on all the applicable grounds under the Unified Screening Mechanism (‘the USM”), including Torture Risk[1], BOR 3 Risk[2] and Persecution Risk[3], but BOR 2 Risk[4] was not assessed.

5.  The Director gave another decision dated 7 February 2017 (“the Director’s 2^nd Decision”) in relation to the applicant’s BOR 2 Risk and considered that the applicant failed to establish a personal and real risk of her absolute and non-derogable rights under the Hong Kong Bill of Rights being violated (including BOR 2 Risk).

6.  However, it seems that the Notice was in relation to the Director’s 1^st Decision only, not the Director’s 2^nd Decision. In the Board’s Decision, the Board also referred to the Director’s 1^st Decision only, not the Director’s 2^nd Decision.

7.  Since there was no such decision dated 28 November 2019, the Leave Application should be in respect of the Board’s Decision.

Amendments

8.  In Form 86, the applicant named both the Board and the Director as the putative respondents but did not name any putative interested party. In fact, only the Board should be named as the putative respondent, and the Director should be named as the putative interested party.

9.  Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and “Director of Immigration” is added as the putative interested party.

10.  As aforesaid, the applicant should be applying for judicial review in respect of the Board’s Decision. Thus, on this court’s own motion, the decision in respect of which relief is sought in the Leave Application is amended to the Board’s Decision.

Late application

11.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant has to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

12.  However, the applicant filed Form 86 on 18 May 2020, which is more than 26 months after the Board’s Decision (made on 8 March 2018). The applicant was hence late for more than 23 months in making the Leave Application, and this court has to consider whether there is any good reason to extend the time for the applicant to make the Leave Application.

13.  As held in AW v Director of Immigration [2016] 2 HKC 393, the criteria for granting an extension of time are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

14.  The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application. A delay of more than 23 months is very substantial. However, as discussed below, this court is of the view that the applicant does have a reasonably arguable case against the Board’s Decision, and in the interest of justice, this court is prepared to grant leave to the applicant to have the Board’s Decision judicially reviewed.

15.  Thus, this court will grant an extension of time for the applicant to file Form 86 out of time on 18 May 2020.

The applicant’s case

16.  It is not necessary for this court to discuss the details of the applicant’s non-refoulement claim here as the Leave Application is only about the applicant’s challenge on the Board’s Decision in refusing her application for late filing of the Notice.

Grounds for judicial review

17.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

18.  However, the applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affidavit filed on 18 May 2020.

Discussion

19.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

20.  Thus, despite that the applicant did not advance any specific ground for the intended judicial review, this court will still examine and scrutinize the Board’s Decision for any errors of law, procedural unfairness and irregularities.

21.  In the Board’ Decision, the Board considered the relevant statutory provisions regarding late filing of the Notice, namely section 37ZT of the Immigration Ordinance, Cap 115, then in force.

22.  Section 37ZT(2) requires the Board to take account of: (a) the statement of reasons stated in the application for late filing of the Notice; and (b) any other relevant matters of fact within the knowledge of the Board.

23.  The statement of reasons stated in the applicant’s application for late filing was that the applicant gave birth to her second son and she was alone taking care of her two minor sons during the time when she received the Director’s 1^st Decision.

24.  The Board did consider the applicant’s statement of reasons, but found that giving birth to a child did not itself justify a delay for more than one year and the applicant did not provide any supporting documents.

25.  The Board also found that there were no other matters known to it or revealed by the factual basis of the applicant’s claim, which might amount to special circumstances and would make it unjust not to allow late filing of the appeal. However, the Board did not consider the merits of the applicant’s appeal at all.

26.  The Court of Appeal had repeatedly held that under the then section 37ZT(2)(b), the Board should have taken account of the merits of the appeal, because the words “any other relevant matters of fact within the knowledge of the Board” required the Board to do so (see Re Khan Kamal Ahmed [2019] HKCA 377, Re Qasim Ali [2019] HKCA 430 and Re Villarosa Rhea Limbaga [2024] HKCA 95).

27.  In other words, in failing to consider the merits of the applicant’s appeal, the Board did not take account of other relevant matters of fact within its knowledge as required by section 37ZT(2)(b). The Board had therefore committed an error of law in the Board’s Decision.

28.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that there could be an error of law in the Board’s Decision as aforesaid, and the intended judicial review is reasonably arguable.

29.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success.

30.  It is this court’s view that the intended judicial review has realistic prospects of success and hence leave should be granted to the applicant to apply for judicial review in respect of the Board’s Decision.

Conclusion

31.  For reasons aforesaid, the time for filing the Leave Application is extended to 18 May 2020, and leave is granted to the applicant to apply for judicial review in respect of the Board’s Decision.

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