PATHOMWORRAKAN NICHAKAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1252/2024

[2025] HKCFI 2878

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1252 OF 2024

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BETWEEN

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 25 May 2020 of the Torture Claims Appeal Board (“the Board’s Decision”), which dismissed her appeal against the Director’s Notice of Decision dated 10 May 2017 (“the Director’s Decision”) refusing her application to re-open her non-refoulement claim for the reason that she had failed to submit the completed non-refoulement claim form (“NCF”). Her application is late. Her application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 25 August 2020. Her application was filed on 31 July 2024, which is late for more than 3 years and 11 months. This issue will be dealt with below.

2.  The applicant did not request an oral hearing. I shall deal with her application on the papers.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant failed to submit her NCF

4.  The applicant lodged a non-refoulement claim with the Director by a written signification dated 7 September 2016. Her duty lawyer had applied for and the Director had granted extension of time for her to submit her NCF. She did not submit the NCF to the Director by 9 January 2017, as prescribed by the Director. Her non-refoulement claim was treated as withdrawn under section 37ZG(1) of the Immigration Ordinance, Cap.115 (“the Ordinance”). She applied to the Director for re-opening her claim.

5.  The Director requested her to provide him with written reasons for non-compliance with his request of submitting her NCF. She did not respond to the Director’s request. The Director rejected her application to re-open her claim.

The Board’s Decision

6.  She appealed the Director’s Decision to the Board. Her appeal was received by the Board on 6 November 2019, almost two and a half years after the prescribed deadline for filing the notice of appeal. She gave the reasons for her late filing as follows:

“Sorry for my late. I am late to filing of Notice of Appeal. It is because I did not understand the appeal process and the importance of appeal. I do not have time to finish this form.”

7.  The Board did not accept her reason for the late filing of the notice of appeal.

8.  The Board further considered the merits of her case. The Board found that the applicant’s case was lacking in merit, on the basis that her claims were vague, lacking in detail, and unsupported by evidence of any sort. It did not believe that the applicant was fearful of returning to her home country. See paragraphs 27-37 of the Board’s Decision. The Board also found that she did not state why state protection was not available to her and internal relocation was not viable. [Hyperlink of the Board’s Decision, if available.]

9.  For the reasons above, the Board dismissed her appeal.

Application for leave to apply for judicial review of the Board’s Decision

10.  The applicant has filed Form 86 dated 31 July 2024 for leave to apply for judicial review of the Board’s Decision.

11.  The applicant did not raise any specific ground in support of her application. Nor did she explain her late application.

DISCUSSION

12.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

13.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.  The applicant has not raised any objections to the facts as set out by the Board in the Board’s Decision, which are the reasons of the Board’s dismissal of her appeal. Therefore, she has raised no reason to challenge the Board’s Decision.

16.  The applicant fails to show that there is reasonable prospect of success in her intended application against the Board’s Decision.

17.  Nor did the applicant give any good reason for her late application for leave to apply for judicial review of the Board’s Decision.

DISPOSITION

18.  I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.