OGBE WILSON UCHE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3693/2019

[2025] HKCFI 1320

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3693 of 2019

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

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

1.  Form 86 be amended as follows:- (1) the Torture Claims Appeal Board / Non-refoulement Claims Petition Office be named as the Putative Respondent; and (2) the Director of Immigration be named as the Putative Interested Party.

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

3.  The Applicant shall issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule 5 of the Rules of the High Court (Cap.4A).

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 11 December 2019 (the “Form”), the Applicant applied for leave to apply for judicial review (the “Leave Application”) against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 28 November 2019 (the “Board’s Decision”).

2.  In the Form, the Applicant has not named any proposed respondent or interested parties.  As it is trite that the Board should be the proposed respondent whereas the Director of Immigration (the “Director”) should be the proposed interested party, I make an order to amend the Form accordingly on the court’s own motion.

3.  The Applicant had requested an oral hearing for the application.  The hearing was held on 6 March 2025.  The Applicant attended in person.  The Applicant said the conditions have remained the same in his home country and that he had lost his wife in Hong Kong.  Apart from that, the Applicant had made no submissions in support of his Leave Application.

Background

4.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in details in the Director’s decision dated 15 November 2018.  For the purpose of the present Leave Application, I do not consider it necessary to repeat the same here.  The hyperlink to the Board’s Decision, the subject matter of the intended judicial review, is included below[1] for reference.

Discussion

5.  The Applicant applied for leave for judicial review of the Board’s Decision in which the Board refused the Applicant’s late filing of the Notice of Appeal/Petition (the “NOA”).

6.  The applicable legal principles relating to application of this sort are well established.  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.  (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

7.  In the Form, the Applicant has not provided any grounds in support of the Leave Application.  In the supporting Affidavit, the Applicant simply stated that his life is still in danger and he does not want to go back to his country.  No grounds have been put forward as to why the Applicant considered the Board’s Decision to be flawed.

8.  Despite the fact that Applicant has failed to put forward any valid grounds for judicial review, I have still proceeded to consider the Board’s Decision in details.  For the reasons to be explained hereinbelow, I consider that leave should be granted to the Applicant to apply for judicial review of the Board’s Decision.

9.  The starting point is Section 37ZT of the Immigration Ordinance (Cap. 115) which governs the late filing of the Notice of Appeal.  Section 37ZT was amended in 2021, and the present version has become operative since 1 August 2021.  The present version does not require the Board to consider the merits of the applicant’s case in determining whether time should be extended (Section 37ZT(2)).

10.  However, the revised legislation does not have retrospective effect.  As the NOA in the present case was filed on 11 December 2018, the old provision applies.  Under the previous Section 37ZT(2), in considering whether it should allow the late filing of the Notice of Appeal, the Board should take into account “any other relevant matters of fact within the knowledge of the Board” apart from the explanation for the delay.

11.  The leading authority on this issue is the English Court of Appeal decision in The Secretary of State for the Home Department v Begum (2016) EWCA Civ 122, 3 March 2016.  The approach adopted in Begum has generally been referred to as the 3-stage approach.  The first stage of the Begum analysis is to identify and assess the seriousness or significance of the failure to comply with the rules.  The second stage is to consider why the failure occurred, that is to say whether there is a good explanation for it.  The third stage is to evaluate all the circumstances of the case so as to enable the Court to deal with the application justly.

12.  In respect of the third stage, it has been well established that the law required the Board to consider the merits of the Applicant’s case:- Re Khan Kamal Ahmed [2019] HKCA 377, at paragraphs 18 to 20; Re Qasim Ali [2019] HKCA 430, at paragraphs 24 to 26; Re Madbar Abdul Salam [2019] HKCA 640, at paragraphs 25 to 28.

13.  In the present case, having considered the first and second stages of Begum, the Board simply stated the following:-

“18. Following the 3rd stage referred to in Begum, I evaluated all the circumstances in this case and arrived at the conclusion that it is fair and just to refuse the Appellant’s application.

  19. There were no other matters known to me or revealed by the factual basis of the Appellant’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.”

14.  I do not consider that the Board had taken into account the merits of the case in deciding whether to allow the extension of time.  The two short paragraphs identified above are no more than general statements and it is not clear what “circumstances” the Board had taken into account.  The brevity of these two paragraphs indicates that it is more likely than not that the Board did not take into account the merits of the case.  In fact, when I considered the Board’s Decision as a whole, the Board did not actually refer to the Applicant’s claims and the evidence he had given, let alone analysis of the same.

15.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  The role of the Court in judicial review is not to re-assess the non‑refoulement claim but to scrutinize the Board’s decision for errors of law, procedural unfairness or irrationality.  The discretion to extend the time for appeal is vested in the Board.  In the present case, the Board had exercised such discretion incorrectly by failing to take into account the merits of the case.  If the judicial review of the Board’s Decision succeeds, the decision should and would have been quashed and the matter be remitted to the Board to see if, in the circumstances of the case, it should extend time so as to undertake the re-hearing process.

16.  In the premises, leave is granted for the Applicant to apply for judicial review of the Board’s Decision on the ground that it is erroneous in law and procedurally unfair to refuse the late filing of the NOA without considering the merits of the case.

Conclusion

17.  I make an order that the Form be amended as described above.  I allow the Leave Application, and direct the Applicant to issue the Originating Summons within 14 days of this decision, and serve a copy thereof together with all relevant documents on the Board as respondent and on the Director as interested party.

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

[1]https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL003693_2019_files/the_Board's_Decision.pdf