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BETWEEN
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Ogal Belinda Adhiambo |
Applicant |
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Torture Claims Appeal Board / |
Putative |
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Non-Refoulement Claims Petition Office |
Respondent |
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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 Levy:
1. The Form 86 be amended on the court’s own motion.
2. There shall be no an extension of time granted to the applicant to file the application for leave to apply for judicial review out of time.
3. The Leave Application be dismissed.
Observations for the Applicant:
Introduction
1. By a “Notice of application for leave to apply for judicial review” in the prescribed Form 86 filed on 15 June 2021, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 23 October 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 28 March 2019 (“Director’s Decision”) refusing to re-open the applicant’s non‑refoulment claim after a Notice of Deemed Withdrawal was issued upon the applicant’s failure to return to the Director a completed Non-refoulement Claim Form (“NCF”) within the prescribed time. The Board’s Decision can be viewed at the following hyperlink: -
https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000873_2021_files/the_Board's_Decision.pdf
2. In her Form 86, the applicant named “USM” as the proposed respondent and “TCAB” as the interested party. As the Board should have been the proper respondent and the Director the interested party, the Form 86 shall be accordingly amended on the court’s own motion.
3. The applicant’s non-refoulement claim was based on the political persecution from the rival party if refouled to Kenya due to her support for the Orange Democratic Movement. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision.
4. At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 19 March 2026. The applicant attended the hearing in person. The applicant informed the court that she wished to withdraw the Leave Application as well as all applications in relation to her daughter and son, who are minors. Before the hearing, this court was already aware of a related application in HCAL983/2025 (“Daughter’s Application”) in which the applicant as the 1st applicant made a similar leave application on behalf of her daughter, Mtenga Adley as the 2nd applicant. However, the court was unable to find any application in relation to her son, who is now 4 years old.
5. The applicant stated that she would like to withdraw the Leave Application as well as the Daughter’s Application as she wanted to go back home with her two children as soon as possible. The situation back home was much better now. She confirmed the same under oath and further affirmed that she made the withdrawal applications for herself as well as for her daughter out of her free will and that she understood the consequences of the withdrawal.
The Discussion
6. The Leave Application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced.
7. In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit. The applicant’s Form 86 and the supporting affirmation provided no such grounds.
8. As the Courts have repeatedly stated, a finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality.[3] In the present case, the Board had considered the relevant statutory provisions under ss37Y and 37ZG of the Immigration Ordinance respectively concerning the deadline of 28 days for the submission of the completed NCF, the deemed withdrawal of a non-refoulement claim on the failure to return a completed NCF as well as the Director’s power to re-open a deemed withdrawn claim upon being satisfied that there are “circumstances beyond the person’s control” for the failure to return a completed NCF. The Board did not accept the applicant’s explanation that she did not receive the letter from the Director as truthful when there was evidence showing that the applicant personally acknowledged receipt. The Board was satisfied that the deemed withdrawal by the Director was proper. The Board further found that the applicant’s explanation as to the reason for her failure to file a completed NCF, and her account of having changed her residence did not constitute circumstances beyond her control as required under the Ordinance. Albeit not strictly required, the Board went on to consider whether there were special circumstances that it would be unjust not refuse to allow the applicant’s appeal to allow the reopening of her claim. After having considered the COI that the Board had researched on, the Board found that there was no information showing that the applicant would not face generalized violence or severe natural calamity if she were to return to Kenya. The Board therefore dismissed the applicant’s appeal. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors.
9. Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness in the Board’s Decision. The applicant’s has provided no grounds, whether written or oral, to challenge the Board’s Decision. I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.
Whether to extend time for the late application
10. Another matter I need to consider is the delay. Pursuant to O 53 r 4(1) of the Rules of the High Court, an application to apply for judicial review shall be made promptly and in any event within 3 months from the date when the Board’s Decision was delivered. The applicant was late for about 5 months.
11. A delay of 5 months is lengthy. Good reasons shall be required to explain for the delay. However, the applicant only told the court that she could not recall why she was late. In the absence of any explanation for the delay, and having regard to the length of the delay and the lack of realistic prospects of success, I decline to exercise my discretion to grant extension of time to the applicant.
Withdrawal application
12. Apart from the application to withdraw the Leave Application referred to above, there is nothing outstanding in this action. In the circumstances, I make an order to dismiss the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471; Ngo Xuan Tuyen v Torture Claims Appeal Board [2024] HKCA 1140.
Orders
13. The Form 86 be amended on the court’s own motion.
14. There shall be no an extension of time granted to the applicant to file the application for leave to apply for judicial review out of time.
15. The Leave Application be dismissed.
Dated the 10th day of April 2026
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( Alfred CHAN )
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 10/4/2026
Ogal Belinda Adhiambo
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 10/4/2026
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 15823/19/4/81/K44
Director of Immigration
Putative Interested Party’s ref. no.:
L/M (19205) in ImmD RA 7/37/C (formerly RBCZ 11539/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1