KEBBEH MUSTAPHA v. TORTURE CLAIMS APPEAL BOARD

HCAL 1086/2021

[2026] HKCFI 3047

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1086 OF 2021

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 and oral 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”, 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 12 November 2018”. 

2.  The time for filing the applicant’s application for leave to apply for judicial review be extended to 30 July 2021.

3.  Leave granted to the applicant to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 12 November 2018.

4.  The applicant is directed to issue an originating summons for the intended judicial review on or before 10 June 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated and filed on 30 July 2021, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 12 November 2018 without identifying the decision-maker.

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 12 November 2018 (“the Board’s Decision”) in respect of the applicant’s late filing of his Notice of Appeal/Petition (“NOAP”) against the decision of the Director of Immigration (“the Director”) dated 15 December 2017 (“the Director’s Decision”).

3.  By the Director’s Decision, the Director decided not to re-open the applicant’s non-refoulement claim for the reason of his failure to provide sufficient evidence in writing and relevant supporting proof to satisfy an immigration officer that he had not been able to return the completed Non-refoulement Claim Form (“NCF”) as required due to circumstances beyond his control.

4.  It is clear that the date of the decision referred to in Form 86 was the date of the Board’s Decision, as the applicant had annexed a copy of the Board’s Decision to his supporting affirmation dated 30 July 2021. The applicant also confirmed at the oral hearing before this court on 14 May 2026 that he was applying for leave to apply for judicial review in respect of the Board’s Decision. Hence, the Board’s Decision should be the subject matter of the Leave Application. The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL001086_2021_files/the_Board's_Decision.pdf

5.  The applicant first filed his NOAP to the Board on 11 January 2018, which was incomplete. The Board sent a letter dated 12 January 2018 to the applicant and informed him that as he had not filled in Sections 3, 5 and 6 of the NOAP, the NOAP was treated as a nullity. The applicant was therefore informed that he had to complete the said Sections, and as the NOAP was filed late, he was required to complete Section 5, namely “Application for Late Filing of Notice of Appeal/Petition”, of the NOAP.

6.  The applicant filed a completed NOAP to the Board on 27 February 2018. The Board considered that the NOAP was filed 1 month and 25 days late, and refused the applicant’s late filing of the NOAP by the Board’s Decision.

Amendments

7.  In Form 86, the applicant named “USM” as the putative respondent and “T.C.A.B” as the putative interested party, when the Board and the Director should be so named respectively.

8.  As aforesaid, the decision in respect of which relief is sought should be the Board’s Decision.

9.  Thus, this court makes an order on its own motion to amend 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 12 November 2018”.

Late application

10.  By virtue of Order 53, rule 4(1) of the Rules of the High Court, Cap 4A, the applicant had to make the Leave Application within 3 months when the grounds for the Leave Application first arose, ie when the Board’s Decision was made.

11.  However, the applicant filed his Form 86 on 30 July 2021, which was more than 2 years and 8 months after the Board’s Decision (made on 12 November 2018). The applicant was hence late for more than 2 years and 5 months in making the Leave Application.

12.  This court has to consider whether the time for the applicant to make the Leave Application should be extended taking into account of the criteria laid down in AW v Director of Immigration [2016] 2 HKC 393, which are:

(i)  the length of the delay;

(ii)  the reason for the delay;

(iii)  the merits of the intended application; and

(iv)  any prejudice to the putative respondent and to public administration.

13.  The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application. At the oral hearing before this court on 14 May 2026, the applicant only explained the very serious delay by saying that he did not receive the Board’s letter containing the Board’s Decision.

14.  A delay of more than 2 years and 5 months is very substantial. However, as discussed below, this court is of the view that there are merits in the Leave Application. Hence, this court will grant an extension of time to the applicant to file the Leave Application out of time on 30 July 2021.

The applicant’s case

15.  The applicant claimed for non-refoulement protection because if refouled to Gambia, he would be killed by the government, as he was a member of a party which was against the government.

16.  However, as the applicant did not submit a completed NCF to the Director and the Director decided not to re-open the applicant’s non-refoulement claim, the details of the applicant’s non-refoulement claim were not discussed in the Director’s Decision.

17.  The Board did not discuss the applicant’s non-refoulement claim in the Board’s Decision either, as it just refused the applicant’s late filing of the NOAP.

18.  Thus, neither the Director nor the Board had assessed the applicant’s non-refoulement claim and the details of the applicant’s non-refoulement claim are not known to this court.

19.  However, it is not necessary for this court to deal with the details of the applicant’s non-refoulement claim, 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.

Oral hearing

20.  The applicant requested for an oral hearing of the Leave Application and his case was heard on 14 May 2026.

21.  When this court asked the applicant for the grounds for his intended judicial review, he merely replied that he was in danger and asked this court to have sympathy for him.

Grounds for judicial review

22.  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).

23.  The applicant did not advance any ground for the intended judicial review in Form 86, nor in his supporting affirmation dated 30 July 2021.

24.  As aforesaid, the applicant only said that he was in danger at the oral hearing, which is not a valid ground for judicial review at all.

Discussion

25.  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).

26.  Thus, 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.

27.  The Court of Appeal had repeatedly held that under the then section 37ZT(2)(b) of the Immigration Ordinance, Cap 115, the Board should have taken account of the merits of the appeal, because the words “any other relevant matters of fact within the knowledge of the Board” required the Board to do so (see Re Khan Kamal Ahmed [2019] HKCA 377, Re Qasim Ali [2019] HKCA 430 and Re Villarosa Rhea Limbaga [2024] HKCA 95).

28.  It is clear from the Board’s Decision that the Board did not consider the merits of the applicant’s appeal/petition, including the merits of the applicant’s non-refoulement claim itself.

29.  The Board only followed the principles as laid down in The Secretary of State for the Home Department v Begum (2016) ECWA Civ 122 (3 March 2016) to consider whether the applicant’s application for late filing of the NOAP should be allowed. However, as can be seen from paragraph 19 of the Board’s Decision, in evaluating all the circumstances of the applicant’s case, the Board only stated that “I evaluated all the circumstances in this case and arrived at the conclusion that it is fair and just to refuse the Appellant’s application”.

30.  In Re Mohammed Aslam [2025] HKCA 914, the Court of Appeal held that the Board had not properly considered the merits of the applicant’s case, despite the words of the Board that it had evaluated all the circumstances, or that there were no other matters known which might make it unjust not to allow for late filing. Likewise, what the Board said in the Board’s Decision could not be regarded as a proper consideration of the merits of the applicant’s case.

31.  In failing to consider the merits of the applicant’s case, the Board did not take account of other relevant matters of fact within its knowledge as required by the then section 37ZT(2)(b). The Board had therefore committed an error of law in the Board’s Decision. This error of law alone is a sufficient reason for the applicant’s intended judicial review to be reasonably arguable.

32.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the court should grant leave to apply for judicial review when the claim is a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that there are realistic prospects of success for the applicant’s intended judicial review in respect of the Board’s Decision and hence leave is granted to the applicant to proceed with the intended judicial review.

Conclusion

33.  For reasons aforesaid, extension of time is granted for the applicant to file the Leave Application on 30 July 2021, and leave is granted for the applicant to apply for judicial review in respect of the Board’s Decision.

34.  The applicant is directed to issue an originating summons for the intended judicial review on or before 10 June 2026 pursuant to Order 53, rule 5(5) of the Rules of the High Court.

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