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

HCAL 302/2021

[2026] HKCFI 377

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 302 of 2021

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

 1. Extension of time to apply for leave to apply for judicial review be refused;

2.  The name of the Putative Respondent be amended on the Court’s own motion; and

3.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 9 March 2021 for leave to apply for judicial review (the “leave application”) of the decision of the USM dated 10 January 2019.  To the Court’s understanding, “USM” in the non-refoulement context stands for “Unified Screening Mechanism”.  Having made enquiries with the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) and the Immigration Department, the Court found out that the Applicant had made an application for non-refoulement protection which was refused by the Director of Immigration (the “Director”) in his Notice of Decision dated 30 May 2018 (the “Notice”) and her appeal against the Notice was dismissed by the Board’s decision dated 10 January 2019 (the “Decision”).  Hence, on its own motion, the Court amended her leave application by replacing “USM” by “the Board” and making the Board’s Decision the decision in respect of which relief is sought.

2.  The Applicant had requested an oral hearing.  A hearing on 5 January 2025 was scheduled and notice of hearing were sent to her by post on 9 December 2025 to her address as informed by her on 10 September 2024.  The Applicant had never informed the court of any change of address thereafter.   There is nothing to suggest that she had not received the notice of hearing.   An attempt was made on the morning of 31 December 2025 to contact her by telephone to remind her of the hearing, but the calls were not answered.  The Court was satisfied that the notice of hearing had been duly served on the Applicant and that the Court had tried its best endeavour to bring the hearing to her notice.   She did not appear at the hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

Filing out of time

3.  An application for judicial review can only be made with leave granted pursuant to section 21K(3) of the High Court Ordinance and Order 53, rule 3(1) of the Rules of the High Court (“RHC”).  Order 53, rule 4(1) provides that such leave application must be made promptly and in any event “within three months from the date when grounds for the application first arose.”  This leave application was filed almost twenty six months after the date of the Decision sought to be reviewed.  It was filed 23 months out of time.  In H and Director of Immigration [1] and AH and Director of Immigration [2], the Court of Final Appeal held that where the court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review. 

4.  In AW and Director of Immigration and William Lam[3], the Court of Appeal held that the following factors are relevant in determining whether good reason is shown for extending the period to apply for judicial review: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.  Usually, the first three factors, particularly merits, are most crucial and determinative.  If the sum total of these three factors are in favour of granting extension, the court would be more relaxed with the remaining two.  Conversely, if it is against the granting of extension, there is no need to consider the remaining two factors. However, where an application is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung[4], per Litton PJ. 

5.  The delay in this case is so substantial that leave may be refused on the ground of delay alone without considering the merits of the substantive application, unless the Applicant could provide a reasonable explanation for the delay.  Despite she had been advised in the Form 86 to state the reasons of the delay in making the application, she did not do so. By failing to appear at the hearing, she also forwent her last chance to explain her delay in making the leave application.  As the Applicant had not given a reasonable explanation for the very substantial and inordinate delay of 23 months, she had failed to show good reasons to merit the Court’s exercise of discretion to grant her extension of time file her leave application.   In the circumstances, both extension of time to file the leave application and the leave application are refused.

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