TRAN HONG XOA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1124/2025

[2025] HKCFI 3360

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1124 of 2025

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 Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

The application

1.  The applicant is an illegal immigrant. He lodged a non-refoulement claim with the Director of Immigration (“the Director”), who, by Decision of Notice dated 22 August 2019 (“the Director’s Decision”), refused his claim. The applicant appealed to the Torture Claims Appeal Board (“the Board”).

2.  However, he was late in filing his notice of appeal. By Decision dated 23 April 2025 (“the Board’s Decision”), the Board refused to extend time for him to file his notice of appeal, in effect, dismissed his appeal. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL001124_2025_files/the_Board's_Decision.pdf.

3.  By Form 86 filed on 15 May 2025, the applicant applied for leave to apply for judicial review of the Board’s Decision.

The issues not in dispute

4.  The following facts are not in dispute:

a.  The notice of appeal was signed by the applicant on 14 February 2025.

b.  According to the Board the delay is 1993 days (over 5 years) [6]&[8].

c.  The applicant had given his explanation for his being late in filing the notice of appeal. His reasons are his ignorance of the process and he did not receive certain notices despite informing the Immigration Department whenever he changed his residential address. Having considered his reasons, the Board did not accept his explanation. [9]-[11]

d.  The Board found that the applicant had failed to show that he had exercised all due diligence to file the notice of appeal within time or failed to file the notice of appeal within the period because of circumstances beyond his control. [13]

e.  For the above reasons, the Board refused to extend time for the applicant to file his notice of appeal.

f.  The Board did not consider the merits of the applicant’s case.

The issue in question – application of section 37ZT of the Ordinance

5.  The issue before this Court is whether the Board had correctly applied section 37ZT of the Immigration Ordinance, Cap.115, amended in 2021 to this case:

6.  Section 37ZT, in its original version before the amendment in 2021, provided inter alia:

“Late filing of notice of appeal

(1) If a notice of appeal is filed after the expiry of the 14-day period referred to in section 37ZS(1), it must include an application for late filing of the notice, which—

(a) must include a statement of the reasons for failing to file the notice within that period; and

(b) must be accompanied by all available evidence relied on in support of the reasons referred to in paragraph (a). (Amended 7 of 2021 s. 19)

(2) The Appeal Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal under subsection (3), and in doing so, the Board may take account of –

(a) the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence relied on in support of those reasons; and

(b) any other relevant matters of fact within the knowledge of the Board.

(3) If the Appeal Board is satisfied that by reason of special circumstances, it would be unjust not to allow the late filing of the notice of appeal, the Board may allow the late filing of the notice and must, by written notice, inform the person filing the notice of the Board’s decision….”

7.  Section 37 ZT was amended in 2021.

8.  The amended section 37ZT, provides, inter alia:

“Late filing of notice of appeal

(1) If a notice of appeal is filed after the expiry of the 14-day period referred to in section 37ZS(1), it must include an application for late filing of the notice, which—

(a) must include a statement of the reasons for failing to file the notice within that period; and

(b) must be accompanied by all available evidence relied on in support of the reasons referred to in paragraph (a). (Amended 7 of 2021 s. 19)

(2) The Appeal Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal under subsection (3), and in doing so, the Board may only 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. (Amended 7 of 2021 s. 19)

(3) The Appeal Board may allow the late filing of the notice of appeal if the person filing the notice provides sufficient evidence in writing to satisfy the Board that the person—

(a) had exercised all due diligence to file the notice within the period specified in section 37ZS(1); but

(b) failed to file the notice within the period because of circumstances beyond the person’s control. (Replaced 7 of 2021 s. 19)

…”

9.  The amended version of section 37ZT has varied the terms of subsection (2) and subsection (3).

10.  It is obvious that the legislature has decided to delete subsection (2)(b). The Board’s consideration is therefore confined to subsection (2)(a) only. The legislature has also decided to amend subsection (3), which takes away the Board’s discretion to consider whether it would be unjust not to allow the late filing of the notice of appeal.

11.  The Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA, Hon Yuen JA and Lisa Wong J. 2 April 2019 held that it is incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor. This was decided before section 37ZT was amended in 2021.

12.  The Court of Appeal in Re: Villarosa Rhea Limbaga [2024] HKCA 95, Hon Cheung and G Lam JJA, 25 January 2024 on the issue of late filing of notice of appeal by the applicant, the Court of Appeal held:

“14. …In Re Qasim Ali [2019] HKCA, Lisa Wong J in delivering the decision of the Court of Appeal held:

‘24. In identifying what circumstances are relevant, it is imperative to bear in mind that the discretion to allow the late filing of a notice of appeal is exercisable when it would be “unjust” not to do so by reason of “special circumstances”: see s 37ZT(3) of the Ordinance.

25. It is in this connection that we cannot agree with the Board or the Judge that merits need not or should not be considered (see Board’s Decision at [21] and Call-1 Form at [37]). In our opinion, it would be unjust not to allow the late filing of a notice of appeal where the appeal is meritorious. Indeed, nothing would be more unjust.

26. The Board should have, under s 37ZT(2)(b) of the Ordinance, taken account of the merits of the appeal (albeit on paper without a hearing) regardless of the procedural breaches or the lack of explanation therefor. See Re Khan Kamal Ahmed, CACV 563/2018, [2019] HKCA 377, 2 April 2019, [16]-[20].

27. For these reasons, we are of the view that the intended application for judicial review is reasonably arguable, meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.’

15. We are aware that section 37ZT(2)(b) of the Ordinance has been amended in 2021 and it no longer contains the words ‘any other relevant matters of fact within the knowledge of the Board’. However, in the Board’s decision of 20 September 2018 at [7], such words were quoted verbatim meaning that the Ordinance was not amended at that time. The reasoning of Lisa Wong J in Re Qasim Ali applies. The Board did not consider the merits of the applicant’s case. …The Board should have, under section 37ZT(2)(b) of the Ordinance, taken account of the merits of the appeal albeit on paper without a hearing, regardless of the procedural breaches or the lack of explanation therefor.

16. For these reasons, we are of the view that the intended application for judicial review is reasonably arguable.”

13.  The case under consideration by the Court of Appeal was decided by the Board on 20 September 2018 before section 37ZT was amended in 2021. The old version of section 37ZT must be applied. The Court of Appeal noted the changed version of section 37ZT. It did not hold that despite the changed version of section 37ZT, the Board was still under an obligation to consider the merits of the case and to decide whether it is unjust to not to allow extension of time for the applicant to file the notice of appeal out of time.

Discussion & conclusion

14.  In this case, the application for filing the notice of appeal out of time was in February 2025 where the amended version of section 37ZT applied and the Board so applied it to the facts of this case. The Board was not in error in law, nor was it Wednesbury unreasonable in its decision, there being no issue of procedural unfairness in this case.

15.  Therefore, in my view, the Board is correct to exercise its discretion in accordance with amended section 37 of the Ordinance and refused the applicant’s application to file his notice of appeal out of time. There is no reason for this Court to interfere with the Board’s Decision.

16.  For the reasons above, I am satisfied that there is no reasonable prospect of success in the applicant’s intended application for judicial review of the Board’s Decision.

17.  I dismiss the applicant’s 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