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BETWEEN
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Ganbold, Ganzorig |
Applicant |
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Torture Claims Appeal Board |
Putative |
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Respondent |
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Director of Immigration |
Putative |
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Interested Party |
Application for leave to apply for judicial review
NOTIFICATION of the Judge’s decision (Order 53, rule 3)
Following:
Order by Deputy High Court Judge Michael WONG:
1. On this court’s own motion, the name of the applicant be amended to “Ganbold, Ganzorig”, the name of the putative respondent be amended to “Torture Claims Appeal Board”, the name of the putative interested party be amended to “Director of Immigration” and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 27 October 2025”.
2. The applicant’s application for leave to apply for judicial review be dismissed.
Observations for the applicant:
The Leave Application
1. By way of Form 86 dated 19 November 2025 and filed on 1 December 2025, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision which the applicant described as follows:-
“TCAB
Refuse USM26928
27 october 2025”
2. The Torture Claims Appeal Board (“the Board”) made a decision dated 27 October 2025 (“the Board’s Decision”) in respect of the applicant’s late filing of his Notice of Appeal/Petition (“the NOAP”) against the Notice of Decision by the Director of Immigration (“the Director”) dated 22 July 2025 (“the Director’s Decision”), which rejected his non-refoulement claim on all the applicable grounds under the Unified Screening Mechanism.
3. It is clear that the decision referred to by the applicant in Form 86 is the Board’s Decision. The Board’s Decision can be viewed in the following hyperlink:-
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2025/HCAL002658_2025_files/the_Board's_Decision.pdf
4. Although the NOAP was dated 28 July 2025, the applicant filed the NOAP to the Board on 12 August 2025, which was out of time. In the Board’s Decision, the Board disallowed the applicant’s application for the late filing of the NOAP.
Amendments
5. In Form 86, although the applicant stated his name in the title, he only put the address of the Castle Peak Bay Immigration Centre as the “Name, description and address of applicant” without putting his own name there.
6. He also named “Appeal Board Jujment TORTURE CLAIMS APPEAL BOARD” as the putative respondent, when only the Board should be so named.
7. Further, he named “Torture Clams APPeal Board, NON-refusement Clames Petetion Office” as the putative interested parties, when the Director should be so named.
8. The Non-refoulement Claims Petition Office is just an office which provides administrative and secretariat support to the adjudicators of the Board and should not be named as a putative interested party at all.
9. As aforesaid, the decision in respect of which relief is sought should be the Board’s Decision.
10. Thus, this court makes an order on its own motion to amend the name of the applicant to “Ganbold, Ganzorig”, the name of the putative respondent to “Torture Claims Appeal Board”, the name of the putative interested party to “Director of Immigration” and the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 27 October 2025”.
The applicant’s case
11. It is not necessary for this court to state the details of the applicant’s case here as the Leave Application is only about the applicant’s challenge on the Board’s Decision in refusing his application for late filing of the NOAP.
Disposal on paper
12. The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court.
Grounds for judicial review
13. 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).
14. The applicant did not advance any ground for the intended judicial review in Form 86. He only stated in his supporting affirmation dated 1 December 2025 that he could not go back to his own country because his life was unsafe there.
Discussion
15. 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).
16. Thus, the applicant cannot ask this court to re-assess his non-refoulement claim. His alleged danger in his own country had already been assessed but rejected by the Director.
17. However, despite that the applicant did not advance any valid ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.
18. This court is aware that section 37ZT(2)(b) of the Immigration Ordinance, Cap 115, has been amended in 2021. The present section 37ZT(2) no longer requires the Board to consider “any other relevant matters of fact within the knowledge of the Board”. As held by the Court of Appeal, this phase required the Board to take account of the merits of the appeal (see Re Khan Kamal Ahmed [2019] HKCA 377, Re Qasim Ali [2019] HKCA 430 and Re Villarosa Rhea Limbaga [2024] HKCA 95). However, after the amendment, the Board no longer needs to deal with merits as of 1 August 2021 (see Re Mohammed Aslam [2025] HKCA 914).
19. As the applicant’s case was not covered by the old section 37ZT(2)(b), it was correct for the Board not 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 NOAP and the evidence relied on in support of the reasons.
20. 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 NOAP and the evidence relied on in support of the reasons.
21. Under Section 5 of the NOAP, the applicant claimed that he received the Director’s Decision in August 2025. However, the Board found that the applicant signed the NOAP on 28 July 2025, which showed that the applicant must have received the Director’s Decision before 28 July 2025 and not in August 2025. The Board also found no evidence to show that there was any delay on the part of the Director in sending the Director’s Decision to the applicant. Thus, the Board did not accept what the applicant claimed under Section 5 of the NOAP.
22. The Board found that it is the applicant’s responsibility to exercise all his due diligence to file the NOAP within time, and the applicant did not provide any documentary evidence to prove that his failing to file the NOAP within the statutory limit was because of circumstances beyond his control. Thus, the Board concluded that there was no basis on which to exercise any statutory discretion to extend the time limit, and the applicant’s application for the late filing of the NOAP was not allowed.
23. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.
24. Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision.
25. As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.
Conclusion
26. For reasons aforesaid, the Leave Application is dismissed.
Dated the 14th day of January 2026
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( Irene LEE )
for Registrar, High Court
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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
Notes for the applicant:
If leave has been granted, the applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent/Handed to the applicant/the applicant’s solicitors
on: 14 January 2026
Applicant’s ref. no:
Nil |
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Sent/Handed to the putative respondent / the putative respondent’s solicitors / such putative interested parties as may be directed by the Court / the putative interested parties’ solicitors on:
14 January 2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative respondent’s ref. no.:
USM 26928
Director of Immigration
Putative interested party’s ref. no.:
QA T/C 1141/25
(formerly RBCZ 5001032/25)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1