SALES MARK STEVEN PAZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 231/2023

[2026] HKCFI 3134

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 231 of 2023

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By a form 86 filed on 16 February 2023 (the “Form 86”), the Applicant applied for leave to apply for judicial review of a decision by the Torture Claims Appeal Board (the “TCAB”) dated 26 October 2022 (the “TCAB Decision”), which refused the Applicant’s late filing of an appeal against a decision by the Director of Immigration (the “DOI”) in refusing the Applicant’s non-refoulement protection claim. He named the TCAB as the proposed respondent and the DOI as an interested party.

2.  The Applicant requested for a hearing and he attended the same. When asked if he had anything to add, he confirmed that he had not.

Background

3.  The Applicant is a national of the Philippines. His non-refoulement protection claim was refused by the DOI by its decision dated 25 October 2021. However, the Applicant only filed his Notice of Appeal to the TCAB on 4 July 2022, i.e. almost 8 months out of time. Details of the relevant facts and procedural history have been sufficiently set out in the TCAB Decision, which can be accessed through a hyperlink[1], and I shall not repeat the same herein.

Discussion

4.  In a judicial review, this court does not provide a further avenue of appeal. Though in non-refoulement case an enhanced standard in scrutinizing the decision of the TCAB is required given the seriousness of the issue at hand, this court should not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. This court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB (Nupur Mst v Director of Immigration [2018] HKCA 524, [14(1)]). There must be a reasonably arguable claim with a realistic prospect of success before leave for judicial review will be granted (Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676).

5.  Looking at the TCAB Decision, the issue before it was whether the Applicant’s late filing of the Notice of Appeal should be allowed. The governing statutory regime was that under s.37ZT of the Immigration Ordinance (Cap. 115) (the “Ordinance”). As at the time of the TCAB Decision, the version of s.37ZT of the Ordinance no longer required consideration of “any other relevant matters of fact within the knowledge of the Board” (previous s.37ZT(2)(b)); this requirement has since 1 August 2021 been removed by statutory amendment.

6.  The TCAB set out correctly the above regime [9-11] and was cognizant of the change in law [22-23]. On the basis of the evidence before it, the TCAB found and concluded that the Applicant failed to give any real explanation as to the lateness, and therefore failed to establish that he had exercised all due diligence to file the appeal within time but only failed to do so because of circumstances beyond his control, as per s.37ZT(3) of the Ordinance [17-21].

7.  As such, turning to the Form 86 and the affirmation filed in support of this application, there is no merit in the Applicant’s complaints of not being afforded an oral hearing, which is specifically dispensed with under s.37ZT(2) of the Ordinance, or any of the complaints that goes to the substantive merits of the non-refoulement claim, which is not to be considered as per the same section.

8.  I do not see any error of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.

Conclusion

9.  For the above reasons, I am not satisfied that this court should intervene by way of judicial review. I therefore dismiss the 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