GUINDO AMADOU v. TORTURE CLAIMS APPEAL BOARD

HCAL 1904/2020

[2026] HKCFI 940

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1904 OF 2020

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 or counsel 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 7 May 2020”. 

2.  The time for filing the applicant’s application for leave to apply for judicial review be extended to 23 September 2020.

3.  Leave granted to the applicant to apply for judicial review in respect of the Torture Claims Appeal Board’s decision dated 7 May 2020.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated 22 September 2020 and filed on 23 September 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 7 May 2020 without identifying the decision-maker.

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 7 May 2020 (“the Board’s Decision”) in respect of the applicant’s late filing of his Notice of Appeal/Petition (“Notice of Appeal”) against the decision by the Director of Immigration (“the Director”) dated 28 November 2017 (“the Director’s Decision”), which rejected his non-refoulement claim.

3.  It is clear that the date of the decision referred to in Form 86 was the date of the Board’s Decision. Hence, the Board’s Decision should be the subject matter of the Leave Application.

4.  The applicant filed his Notice of Appeal to the Board on 3 June 2019, which, according to the Board, was 1 year 5 months and 22 days late. The Board refused the applicant’s late filing of the Notice of Appeal in the Board’s Decision. The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001904_2020_files/the_Board's_Decision.pdf

Amendments

5.  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.

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

7.  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 7 May 2020”.

Late application

8.  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.

9.  However, the applicant filed his Form 86 on 23 September 2020, which was more than 4 months after the Board’s Decision (made on 7 May 2020). The applicant was hence late for more than 1 month in making the Leave Application.

10.  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.

11.  The applicant did not make any application for extension of time and provided no explanation for the delay in making the Leave Application.

12.  A delay of more than 1 month is not insubstantial. 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 23 September 2020.

The applicant’s case

13.  It is not necessary for this court to repeat the details of the applicant’s case here as the Leave Application is only about the applicant’s challenge on the Board’s Decision in refusing his application for late filing of his Notice of Appeal.

Disposal on paper

14.  The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court. Hence, the Leave Application is dealt with on paper only.

Grounds for judicial review

15.  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).

16.  The applicant did not advance any ground for the intended judicial review in Form 86, nor in his supporting affidavit dated 23 September 2020.

Discussion

17.  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).

18.  Thus, despite that the applicant did not advance any ground for the intended judicial review, this court will still scrutinize the Board’s Decision for any errors of law, procedural unfairness or irrationality.

19.  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).

20.  It is clear from the Board’s Decision that the Board did not fully consider the merits of the applicant’s appeal, but just the merits of the applicant’s grounds of appeal.

21.  The Board 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 his Notice of Appeal should be allowed.

22.  As can be seen from paragraph 18 of the Board’s Decision, the Board considered the applicant’s grounds of appeal in Section 2 of his Notice of Appeal and found that “The Director’s Decision had carefully considered and stated the full reasons for refusing his non-refoulement claim”. The Board then found that the applicant’s grounds of appeal did not show any merits.

23.  Following the 3^rd stage referred to in the case of Begum, supra, the Board arrived at the conclusion that it was fair and just to refuse the applicant’s application after evaluating all the circumstances in the applicant’s case.

24.  However, the fact that the Board had made reference to the Director’s Decision cannot be regarded as a substitute for what should be a consideration of the case on the merits on paper (see Re Mohammed Aslam, CACV 192/2025, [2025] HKCA 914).

25.  The Board’s finding that the applicant’s grounds of appeal did not show any merits is not the same as finding the applicant’s case has no merits. The Board should reconsider the applicant’s case as a whole, not just his grounds of appeal.

26.  As held in AM v Director of Immigration and another, HCAL 102/2012, “a determination of a petition under Article 48(13) involves a rehearing of the matter determined by the Assessor and not an appeal from the Assessor’s decision”. The Court of Appeal in Harjit Kaur and Anor v Director of Immigration [2001] 1 HKC 666 also characterized the petition process under Article 48(13) as involving considering afresh the original decision.

27.  Thus, it was not sufficient for the Board to consider just the merits of the grounds of appeal, and not the merits of the applicant’s case as a whole. From the wordings of the Board’s Decision, the Board may not have properly considered the merits of the applicant’s case, which is inconsistent with the principle laid down in Re Qasim Ali, supra.

28.  In other words, 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.

29.  This error of law alone is a sufficient reason for the applicant’s intended judicial review to be reasonably arguable.

30.  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

31.  For reasons aforesaid, extension of time is granted for the applicant to file the Leave Application on 23 September 2020, and leave is granted for the applicant to apply for judicial review in respect of the Board’s Decision.

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