TAMANG ANU v. TORTURE CLAIMS APPEAL BOARD

HCAL 427/2022

[2025] HKCFI 4585

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 427 OF 2022

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents andoral submissions by the applicant in open court;

1.      On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

2.      The applicant’s application to withdraw the application for leave to apply for judicial review be refused.

3.      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 and filed on 2 June 2022, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board (“the Board”) dated 20 April 2022 (“the Board’s Decision”).

2.  On 20 December 2021, the applicant filed the Notice of Appeal/Petition (“the NOA”) against the decision of the Director of Immigration (“the Director”) dated 26 October 2021 (“the Director’s Decision”), which was out of time.

3.  In the Board’s Decision, the Board refused the applicant’s application for late filing of the NOA.  Thus, the Leave Application is only in respect of the Board’s Decision in refusing the applicant’s application for late filing of the NOA.

4.  The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL000427_2022_files/the_Board's_Decision.pdf

Amendments

5.  In Form 86, the applicant named the Board / Non-refoulement Claims Petition Office as the 1^st putative respondent and the Director as the 2^nd putative respondent, when only the Board should be the putative respondent.

6.  The Non-refoulement Claims Petition Office is just an office providing administrative and secretariat support to the adjudicators of the Board and should not be named as a party at all.

7.  As the Leave Application was made in respect of the Board’s Decision only, there is no need to add the Director as the 2^nd putative respondent.

8.  The applicant also named the Board / Non-refoulement Claims Petition Office as the 1^st putative interested party and Immigration Department as the 2^nd putative interested party, when only the Director should be the putative interested party.

9.  This court therefore makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and the name of the putative interested party to “Director of Immigration”.

The applicant’s case

10.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

11.  In sum, the applicant claimed for non-refoulement protection because if refouled to India, she feared being harmed or killed by a man named Sagar as she did not agree to marry him. 

Withdrawal of the Leave Application

12.  The applicant requested for an oral hearing of the Leave Application, but before a hearing is fixed, the Director sent a letter dated 26 May 2025 to inform this court that the applicant had written a letter dated 23 May 2025 to withdraw her judicial review.

13.  As stated in the applicant’s said letter, she wanted to withdraw her appeal to judicial review relating to her non-refoulement claim in Hong Kong.  She wanted to return to her home country as soon as possible.

14.  The applicant had also written two other letters to this court seeking to withdraw her judicial review.  The first letter was undated but received by this court on 10 July 2025.  The second letter was dated 8 August 2025 and received by this court on 15 August 2025.  In both of these two letters, the applicant indicated clearly that she wanted to close her High Court case because her problem in India had been solved and it would be safe for her to go back.

15.  There is no evidence to show that the applicant made the withdrawal applications other than out of her own volition.  With these withdrawal applications, it is clear that the applicant no longer wishes to proceed with the Leave Application or any oral hearing for the Leave Application.  It is therefore not necessary for this court to afford her any oral hearing for the Leave Application even though she had requested one before.

16.  However, the Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 that:-

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

17.  Thus, it is right for this court to deal with the Leave Application instead of leaving the action at large.  The applicant’s application to withdraw the Leave Application is therefore refused, and this court will proceed to consider the merits of the Leave Application.

Grounds for judicial review

18.  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).

19.  The applicant did not identify any ground for the intended judicial review in Form 86.

20.  In her supporting affirmation dated 2 June 2022, the applicant advanced some grounds for the intended judicial review.  The grounds are summarised as follows:-

(1)   The late filing of the appeal was not due to her own mistake, as she was detained and then released on bail before she received the Director’s Decision.

(2)   The Director’s Decision and the Board’s Decision had been determined unfairly, as neither the Director nor the Board had taken her unique situation into account fairly and sequentially. 

(3)   The high standards of fairness were not met as the Board determined her case without a hearing and hence she was not given every reasonable opportunity to establish her claim.

(4)   In assessing her credibility, she should be afforded the benefit of the doubt.

(5)   She did not have any legal advice nor any language assistance.

(6)   The Board did not accept her late filing even though the Board had sympathy for her and knew all the circumstances she was going through.

Discussion

21.  First of all, only the Board’s Decision is reviewable by judicial process and not the Director’s Decision.  There are established statutory procedures of appeal from the Director to the Board and the applicant had invoked those procedures.  The Director’s Decision was superseded by the Board’s Decision and is no longer susceptible to judicial review (see Re Moshsin Ali, [2018] HKCA 549).

22.  Hence, this court will not consider the Leave Application in respect of the Director’s Decision.  In any event, the applicant stated only the Board’s Decision in Form 86 as the decision in respect of which relief is sought.

23.  In her ground (1) as aforesaid, the applicant alleged that it was not her mistake in filing the appeal late.  However, the Board had already considered this matter and found that the applicant had not satisfactorily explained why the application was late.

24.  The applicant’s allegation in her ground (2) lacks specificity, as she did not mention what unique situation of hers was not taken into account fairly and sequentially.  The Court of Appeal has repeatedly held that general assertions without particulars cannot be effective grounds to support a judicial review (see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; and Re Kharsu Numan [2019] HKCA 626).  Further, as held by the Court of Appeal in Re Salim Ahmed alias MD Salim [2020] HKCA 244, “general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case”.

25.  Thus, the general assertion of unfairness put forward by the applicant cannot help the applicant at all.

26.  The applicant’s ground (3), namely that she challenged the Board for failing to conduct a hearing to determine whether to allow the late filing of appeal, was totally devoid of merits.  Section 37ZT(2) of the Immigration Ordinance (“the Ordinance”) stipulates that “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.”

27.  Thus, there is nothing wrong for the Board not to hold an oral hearing in determining whether to allow the late filing of the NOA.

28.  In her ground (4), the applicant asserted that she should be afforded the benefit of the doubt when her credibility was assessed.  However, her credibility was not in issue when the Board decided not to allow the late filing of her appeal.  The Board was just not satisfied, based on the information provided by the applicant, as to why the application was late.

29.  The applicant alleged that there was a lack of legal advice and language assistance in her ground (5).  However, the Court of Appeal has repeatedly emphasized that, as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process (see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37).  Thus, there is no substance in this allegation.

30.  Likewise, it is trite that the high standards of fairness required by law would not entail interpretation service being made available at any time the applicant desires (see Re Gurnishan Singh [2018] HKCA 704 and Re Gurung Sagar [2019] HKCA 658).

31.  Moreover, all the documents filed by the applicant in relation to the Leave Application were written in English.  This indicates clearly that the applicant is either familiar with the English language or she has access to such language assistance if needed.  The applicant cannot claim that she has been prejudiced at all.

32.  In her ground (6), the applicant asserted that the Board did not accept her late filing even though the Board had sympathy for her and knew all the circumstances she was going through.  The Board did indeed expressly state in paragraph 26 of the Board’s Decision that it was sympathetic towards the applicant’s situation, given that she was in custody when the decision rejecting her application was made.

33.  However, even though the Board accepted that the applicant did not receive the Director’s Decision until 12 December 2021, she did not lodge the NOA for a further 8 days.  Thus, the Board was not satisfied that the applicant had satisfactorily explained why the application was late.  The Board was also not satisfied that the applicant had exercised all due diligence to make the application within the required time, but failed to do so due to circumstances beyond her control.

34.  The Board made the decision in refusing the applicant’s late filing after considering the statement and any supporting documentation provided by her, which was in accordance with Section 37ZT of the Ordinance as amended.  In addition, the Board also considered on a preliminary basis the grounds of appeal advanced by the applicant and the merits of her application for non-refoulement protection, having regard to the obligation to apply high standards of fairness.

35.  In assessing the merits of the applicant’s claim, the Board concluded that it was not satisfied that there was a real risk that Sagar would still have any intention of harming the applicant, or seeking to marry her if she were now to return to India, almost six years after her departure.  In any case, the applicant could relocate to her friend’s village at least for a time, and that it would not be unreasonable or unduly harsh to require her to do so.

36.  Thus, the Board did give detailed reasons why it refused to allow the applicant’s late filing of the NOA.  This court finds no error on the part of the Board in reaching its decision.

37.  Moreover, in making her withdrawal applications, the applicant confirmed that her problem in India was solved and it would be safe for her to return home.  It is clear that she no longer needs non-refoulement protection and the Leave Application serves no practical purpose.

38.  It is well established that the court may exercise discretion not to grant a remedy on judicial review if it would serve no practical purpose, where it may have become otiose or pointless to grant a remedy because the relevant detriment to the applicant has been removed (see AW v Director of Immigration and William Lam, CACV 63 of 2015).

39.  Thus, even assuming that there were errors of law, procedural unfairness, or irrationality in the Board’s Decision and the case were remitted to the Board for reconsideration, there would simply be no more basis for the applicant to claim non-refoulement protection.  The Board should assess the risk of the applicant at the time of the proceedings, taking account of information that has come to light to ensure that it is able to make a “full and up-to-date assessment” of the current situation (see Ubamaka Edward Wilson v. Secretary for Security and Another (2012) 15 HKCFAR 743).

40.  It is therefore otiose and pointless to grant leave to the applicant to proceed with the intended judicial review, and hence the Leave Application ought to be dismissed.

Conclusion

41.  For reasons aforesaid, the application to withdraw the Leave Application is refused and the Leave Application is dismissed.

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