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

HCAL 1109/2022

[2026] HKCFI 2585

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1109 of 2022

Application for Leave to Apply for Judicial Review

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

Following;

1.   The extension of time for the application for judicial review be dismissed; and

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

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 19 October 2022 (“Form 86”), the Applicant applied for leave to apply for judicial review (“Leave Application”) against the decision of the Torture Claims Appeal Board (“Board”) dated 24 January 2022 (“Board’s Decision”)[1], dismissing the Applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 17  September 2021 (“Director’s Decision”).

2.  The Applicant was absent from the oral hearing for the Leave Application on 3 March 2026, and I proceed to consider the merits of the Leave Application based on the documents available: Re Abdus Salam [2019] HKCA 1091.

Discussion

3.  The Applicant made the Leave Application out of time.  Order 53 rule 4 of the Rules of the High Court provides:-

“(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

(2) Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to the date of that judgment, order, conviction or proceeding.”

4.  In determining whether time should be extended for an application for leave for judicial review, the following factors are relevant: (a) the length of the delay; (b) the explanation for delay; (c) the merits of the substantive application; (d) whether there is any prejudice; (e) whether the application raises questions of general public importance: Re Thomas Lai [2014] 6 HKC 1 at §§43-45; AW v Director of Immigration [2016] 2 HKC 393 (CA) at §§23-27;

5.  The delay in question is about 8 months, and the Applicant has provided no explanation for the delay.

6.  As to the merits of the intended judicial review application, I am not satisfied that it is reasonably arguable with any realistic prospect of success. 

7.  The Leave Application operates as a filtering process and there is no requirement or expectation to give elaborate reasons for my decision: Re Zunariyah [2018] HKCA 14 at [23]. It suffices for me to state my observations after considering the Board’s Decision and the Applicant’s materials adduced.  There must be a reasonably arguable case with a realistic prospect of success before leave for judicial review will be granted: Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

8.  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board. Although the Court will adopt an enhanced standard in scrutinizing the Board’s Decision due to the seriousness of the issue, it should not usurp the role of the Board.  The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

9.  In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly: Ho Loy v Director of Environmental Protection (HCAL 21/2015, 22/12/2016) at [142], and further to make full and frank disclosure of all material facts to be verified by an affidavit.

10.  The Applicant did not point to any error of law, procedural unfairness or irrationality of the Board’s Decision in the Form 86 nor in her affirmation in support.

11.  The Board refused to entertain the Applicant’s appeal on the basis that her Notice of Appeal was filed out of time. Under section 37ZT(1) of the Immigration Ordinance (Cap.115), the Applicant’s application before the Board was required to be filed after the expiration of a 14-day appeal period.  The Notice of Decision was dated 26 November 2021, and the Notice of Appeal was dated 17 September 2021.   

12.  Under section 37ZT(2), the Board may only take account of the statement of reasons stated in the application for the late filing of the notice of appeal and the evidence relied on in support of the reasons.

13.  According to the Notice of Appeal, the only statement put forward by the Applicant was that she was 2 months late in taking out the application.  The Applicant provided no reasons for her delay, nor adduced any evidence in support of them.

14.  The Board duly considered that the Director’s Decision was sent to the Applicant on 18 ‎September 2021 through Duty Lawyer Service.  Under section 37ZV(2)(b) of the Immigration Ordinance, the Duty Lawyer Service is conclusively presumed to have received the Director’s Decision on 21 September 2021.  The Applicant failed to show that she had exercised all due diligence to file the Notice of Appeal within time, but failed to do so because of circumstances beyond her control: section 37ZT(3) of Immigration Ordinance.

15.  Having considered the Board’s Decision with rigorous examination and anxious scrutiny, I do not find any error of law, procedural unfairness or irrationality. The Board’s Decision was comprehensive with adequate reasons provided.  There is also nothing to indicate that the Board failed to take into account any relevant matters, or otherwise reached a decision that it was not entitled to make.  Accordingly, there is no reasonably arguable ground for judicial review with any realistic prospect of success.

16.  As to the question of prejudice, it is essential to adopt a disciplined approach in time extension applications to prevent unnecessary disruption to public administration and to avoid inevitable delay that would result from permitting unmeritorious proceedings to proceed out of time.

17.  The Applicant has also not raised any question of significant public importance.

Conclusion

18.  By reason of the above, no extension of time is granted for the making of the Leave Application, 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