VALENCIA ATEHORTUA JOSE DE JESUS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 178/2020

[2025] HKCFI 4745

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 178 of 2020

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

Following:

1.  Form 86 be amended, naming only the Torture Claims Appeal Board/Non-refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party.

2.  Leave to apply for judicial review be refused.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 16 January 2020, the Applicant applies for leave to apply for judicial review (“the Leave Application”) of both the decision of the Director of Immigration (“the Director”) dated 29 March 2018 (“the Director’s Decision”) and the decision of the Torture Claims Appeal Board/Non‑refoulement Claims Petition Office (“the Board”) dated 23 August 2019 (“the Board’s Decision”).  By the Board’s Decision, the Applicant’s application for late filing of the Notice of Appeal of the Director’s Decision, which rejected his non‑refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM), was refused.

2.  It is important to note that it is the Board’s Decision, rather than the Director’s Decision, which is subject to the process of judicial review.  There are established statutory procedures of appeal to the Board under section 37ZR of the Immigration Ordinance, Cap. 115.  The Applicant invoked such procedures, and the Director’s Decision, superseded by the Board’s Decision, is no longer susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549).

3.  As stated in the Memorandum of Notification of an Application for Legal Aid dated 7 April 2025, the Applicant has applied for legal aid.  Pursuant to Regulation 7A of the Legal Aid Regulations, Cap. 91A, the period during which any proceedings are stayed by section 15 of the Legal Aid Ordinance, Cap. 91 shall be 42 days.  Up to today, the Legal Aid Department has yet to make a decision on the Applicant’s legal aid application.  I decline to accede to his request for a stay pending the outcome of such decision.  

4.  Unless otherwise specified, the abbreviations and descriptions used in the Board’s Decision, the hyperlink to which is included below[1], are adopted herein. 

Background

5.  The Applicant took out the Leave Application late.  Pursuant to Order 53, rule 4 of the Rules of the High Court, Cap. 4A:

“(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 judgement, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgement, order, conviction or proceeding.”

6.  The Applicant has however neither applied for extension of time, nor explained the delay in his supporting affirmation to the Leave Application.

7.  In determining whether to grant leave to file an application for leave to apply for judicial review out of time, the Court of Appeal held that the following factors are relevant: (i) the length of the delay; (ii) the explanation for the delay; (iii) the merits of the substantive application; (iv) any prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (v) 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 (see AW v Director of Immigration & Anor [2016] 2 HKC 393 (CA) at §§23‑36, Thomas Lai [2014] 6 HKC 1 at §§43 to 45 (as also cited in AW, supra), and H v Director of Immigration (2020) 23 HKCFAR 248 at §§17-22, 36-44 (citing inter alia both AW and Thomas Lai, supra); see also Re Hariatiningsih [2021] HKCFI 1194 at §§12-13, 16-19 citing the aforesaid, upheld in [2022] HKCA 1321).

8.  The delay in question is not the most substantial. In this context, merit is usually the determinative factor (see Re Mizan Jarder [2023] HKCFI 2502 at §13).  For the reasons below, I am not persuaded that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676).

9.  The Applicant has failed to identify any valid and effective public law grounds (see Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015 (unreported, 22 December 2016) at §142).  It is well-established that judicial review does not operate as a further avenue of appeal (see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163).

10.  Notwithstanding that, in view of the seriousness of the issues involved, I have reminded myself of the enhanced standard required by law (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14).  In scrutinizing the Board’s Decision, I note that the Board ought to have considered the merits of the Applicant’s intended appeal of the Director’s Decision, as required by section 37ZT(2) and (3) of the Ordinance (in force in 2019), but did not appear to have done so (see Re Qasim Ali [2019] HKCA 430, citing Re Khan Kamal Ahmed, CACV 563/2018, [2019] HKCA 377, 2 April 2019, §§16-20):  

(1)   The Director’s Decision was sent to the Applicant on 29 March 2018.  He was advised of his right to appeal/petition such decision within 14 days, and the deadline was on 18 April 2018.

(2)   The Applicant filed his Notice of Appeal to the Board on 11 June 2018, which was 1 month and 24 days late.  The Board found such delay serious and significant.

(3)   The Board refused the Applicant’s application for late filing of the Notice of Appeal.

(4)   The Board noted that the Applicant adduced no documentary evidence in support.  He also did not give any reason in Section 5 of the Notice of Appeal for the late filing.  There was therefore no acceptable explanation for the delay.

(5)   The Board observed that the Applicant had legal representation from the publicly-funded Duty Lawyer Service.  In these circumstances, there was no good reason for the breach of the rules.  The delay of 1 month and 24 days would also show that he had not promptly dealt with the submission.

(6)   The Board stated that it had evaluated all the circumstances before coming to the conclusion that “it is fair and just to refuse the [Applicant]’s application”.  It also indicated that there were no other matters known or revealed by the factual basis of the Applicant’s claim which might amount to “special circumstances” and which might make it “unjust” not to allow the late filing of the Notice of Appeal.

(7)   The Board, however, did not make it explicitly clear whether it had taken into account the merits of the intended appeal, regardless of the procedural breaches or the lack of explanation therefor, or if it had, what its views and reasons were (see Re Qasim Ali at §§25-26).

11.  Having said the above, it must nevertheless be clear that, in light of the content of the Notice of Appeal to be filed with the Board, the intended appeal could not possibly have succeeded before the Board (see Re Hariatiningsih [2021] HKCFI 1194 at §12):

(1)   There was little merit in the Applicant merely reiterating, in the Notice of Appeal, that it would be dangerous for him to return or that he wished to remain, as such assertions did not advance his appeal before the Board.  

(2)   Furthermore, apart from asserting that he had been unable to provide information about his case and that it was therefore unfair for his claim to be rejected, and that, had he not been in prison, he would have produced evidence to support his claim, the Applicant never identified, in the Notice of Appeal, what, in concrete terms, he intended to provide for the Board’s consideration.

(3)   This is leaving aside the question of why such matters were not placed before the Director for consideration in the first place, which would inevitably impact the credibility of the Applicant.

(4)   Even at this stage, the Applicant has not followed up on this, and it remains entirely unclear what he wishes or intends to rely upon.  Had his claim been genuine, he should have promptly informed the Board of the materials or information in his possession that he wished the Board to consider in substantiating his appeal. 

(5)   At the very least, following the Board’s refusal of his application for late filing of the Notice of Appeal, and in seeking to judicially review that decision, the Applicant ought to have clearly and precisely identified them in the Form 86 and his supporting affirmation.  As it stands, both of them are virtually empty, containing no meaningful detail whatsoever.      

(6)   As previously noted, the Memorandum of Notification of an Application for Legal Aid was dated 7 April 2025.  The Applicant has adduced no evidence to show what steps he has taken to obtain legal aid since initiating the Leave Application in January 2020.  Now that he requests a stay of the proceedings pending the outcome of his legal aid application, his intent to cause further, substantive delay could not be more blatant.     

12.  Finally, I see no prejudice in refusing to allow the Applicant to proceed with an otherwise completely unmeritorious application.  On the other hand, permitting him to do so would be disruptive and detrimental to the public administration and to the putative Respondent.  For completeness, I also do not see, nor do I accept, (if this is the Applicant’s position), that there is any question of general public importance being raised.

Conclusion

13.  In view of the foregoing, I see no good reason to extend time for the Applicant to apply for leave to apply for judicial review and dismiss the Leave Application.

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