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HCAL 882/2020
[2025] HKCFI 3084
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 882 of 2020
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BETWEEN
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Luvsandagva Baasankhuu |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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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 (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge (Non-refoulement Claims) Teresa Wu:
(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) No extension of time be granted for application for leave to apply for judicial review and the application herein be dismissed.
Observations for the Applicant:
Introduction
1. By Form 86 (“Form 86”) filed on 12 May 2020, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”)’s decision dated 30 May 2019[1], the hyperlink to which is included below[2] (“the Board’s Decision”), refusing her late filing of a Notice of Appeal against the decision of the Director of Immigration (“the Director”) dated 16 May 2017, which rejected her non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM) (“the Director’s Decision”). Unless otherwise specified, I shall adopt the Board’s abbreviations and descriptions herein.
Discussion
2. The Applicant is absent from the oral hearing. I proceed to consider the merits of the present application based on the materials available (see Re Abdus Salam [2019] HKCA 1091).
3. The Applicant has taken out the Leave Application late. According to Order 53, rule 4 of the Rules of the High Court:
“ (1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.
(2) Where the relief sought is an order of certiorari in respect of any judgement, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgement, order, conviction or proceeding.”
4. Having considered and applied the legal principles set out in AW v Director of Immigration [2016] 2 HKC 393 and Re Thomas Lai [2014] 6 HKC 1, I am not prepared to extend time for the Applicant.
5. First of all, the Applicant has neither provided an explanation for the delay nor requested an extension.
6. Most importantly, I am not persuaded that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospect of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676):
(1) The Applicant filed the appeal against the Director’s Decision 11 months and 13 days late. The Board found such delay “serious and significant”.
(2) The Board also did not accept the Applicant’s reasons for late filing.
(3) After evaluating all the circumstances, the Board concluded that it was “fair and just” to refuse the Applicant’s application.
(4) The Board concluded that no other matters, whether known or revealed by the factual basis of the Applicant’s claim, amounted to special circumstances that might render it unjust to refuse the late filing of the Notice of Appeal.
(5) In scrutinizing the Board’s Decision, I have reminded myself of the enhanced standard required by law (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14). I note that the Board did not make it explicitly clear whether it had taken into account the merits of the intended appeal, regardless of the procedural breaches or the lack of explanation therefor (see Re Qasim Ali at §§25-26). However, taking into the matters set out in the Notice of Appeal (with English translation), it is clear the intended appeal had no realistic prospect of success before the Board (see Re Hariatiningsih [2021] HKCFI 1194 at §12).
(6) The Applicant has otherwise failed to identify any valid grounds for judicial review against the Board’s Decision (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (22 December 2016) at §142), nor has she demonstrated that the Board committed any public law errors or failed to uphold a high standard of fairness in the decision-making.
(7) The Court’s role in a judicial review is not to provide a further avenue of appeal (see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163).
7. Regarding the question of prejudice, I see none in refusing to extend time for an application that is entirely without merit. It is important to adopt a disciplined approach in applications of this kind, as failure to do so would risk unnecessary disruption to public administration. I also do not see, nor do I accept, that any question of general importance is involved.
Conclusion
8. For these reasons, I refuse to extend time for the Applicant and dismiss the Leave Application.
Dated the 31st day of October 2025
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(Teresa Ng)
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 the Applicant’s 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 to the Applicant
on the 31st day of October 2025
Luvsandagva Baasankhuu
Applicant’s ref. no:
Nil |
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Sent 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 the 31st day of October 2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11625/18/5/210/MNG18
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 889/16
(formerly RBCZ 10851/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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