BONIYAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 118/2023

[2026] HKCFI 3011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 118 of 2023

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 the 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 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 30 January 2023, 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 30 December 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 10 August 2022 (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 12 May 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. Apart from contending that there was procedural impropriety by reason of the Board’s failure “to consider that why [the Applicant] was late filing [her] Appeal petition, [she] was not aware of Appeal System and is a lay person… [she] was late to appeal because [her] Appeal files was late”, the Applicant merely repeats there was procedural impropriety or failure to conduct her screening interview upon her appeal/petition.

5.  On 6 May 2026, the Court also received the Applicant’s written submissions which included further grounds for judicial review and enclosed some materials on “Why is Indonesia still failing victims of domestic violence”. These further grounds are virtually devoid of substance save for a general attack on the Board and/or the Director of Immigration that they had failed to assess and/or consider her fear, risk and threats from enemies and her psychological strain and home country’s condition. Suffice to say, the Applicant has failed to identify any valid or effective public law grounds. [3]

6.  In view of the seriousness of the issues involved, I have reminded myself of the enhanced standard required by law. I will therefore scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

7.  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 29 August 2022 i.e. at least 3 days late.

8.  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.

9.  As can be seen from the Board’s Decision, the Board did fully consider the statement of reasons stated in the application for late filing of the Notice of Appeal i.e. “[the Applicant] only received the form [for filing the appeal] on 18 [August 2022] from [her] lawyer and did not know how to submit it, therefore [she] was late.”  In fact, the Board actually enquired with the Applicant’s then legal representatives who then informed the Board that “the contents of the Director’s Decision and the Notice of Appeal were explained to the [Applicant] with the assistance of an interpreter on 18 August 2022.”  A copy of the acknowledgement signed by the Applicant on 18 August 2022 was also provided to the Board. In such circumstances, the Board was entitled not to accept the reasons provided by the Applicant. The procedure for lodgment of the appeal is clearly stated in the instructions that accompany the Notice of Appeal/Petition, which the Applicant’s legal representatives explained to her with the assistance of an interpreter.

10.  The Board also rightly pointed out that the Applicant had offered no explanation as to why she was then able to lodge the appeal on 29 August 2022 but not before 26 August 2022 as required. The Board was therefore entitled to find that she had not exercised due diligence to file the Notice of Appeal within the required time. The Board was not satisfied that she failed to do so due to circumstances beyond her control.

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[5]. 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