YEBOAH JOHN MARTIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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 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.   The Applicant’s application for extension of time to file the application for leave to apply for judicial review be refused.

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

Observations for the Applicant:

Introduction

1.  By a Form 86 dated 8 April 2021 (the “Form 86”), the Applicant applied for leave to apply for judicial review against, in truth (see below), the decision by the Torture Claims Appeal Board (the “TCAB”) dated 4 August 2017 (the “TCAB Decision”), which affirmed the decision of the Director of Immigration (the “DOI”) dated 8 November 2016 in not re-opening his non-refoulement claim.

2.  I amend the Form 86 on my own motion to name the TCAB as the putative respondent and the DOI as the putative interested party.

3.  In the Form 86, the Applicant sought leave for judicial review against what appears to be a decision dated “20-9-2016”.  I cannot figure out to which decision the Applicant was supposedly referring.  In any event, since the DOI Decision is superseded by the TCAB Decision (Re Moshin Ali [2018] HKCA 549 at [45]), for present purposes, the subject matter of the present application is the TCAB Decision.

4.  The Applicant requested for a hearing of this application.  He had nothing to add for his application.  His explanation for the delay is dealt with below.

Background

5.  The Applicant’s personal background, the relevant facts and relevant procedural history have been sufficiently set out in the TCAB Decision[1].  I shall therefore not repeat them.  Unless otherwise specified, TCAB’s abbreviations and descriptions are adopted herein.

Legal Principles

6.  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 is sufficient to state my observations after considering the TCAB Decision and the materials adduced by the Applicant.

7.  I remind myself that in a judicial review, this court does not provide a further avenue of appeal.  While I also remind myself that in non-refoulement cases, I would adopt an enhanced standard in scrutinizing the decision of the TCAB given the seriousness of the issue at hand, this court would not usurp the role of the TCAB, which together with the DOI are the primary decision-makers. A finding of fact is exclusively within the realm of the TCAB, and this court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the TCAB: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].  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. 

Discussion

8.  The Application was grossly out of time.  He did not explain the delay on paper.  When asked, he said that he was in prison until 2017, and did not receive the notification.  But he admitted that he did not make the application even though he was notified of the TCAB’s decision in 2019.   The Applicant’s explanation was wholly unsatisfactory (See Thing Sunil v TCAB [2025] HKCFI 4366, at [9], citing AW v Director of Immigration & anor. [2016] 2 HKC 393 (CA) at [23 to 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.  See also Re Hariatiningsih [2021] HKCFI 1194 at §§12-13, 16-19 citing the aforesaid, upheld in [2022] HKCA 1321).

9.  Be that as it may, it is plain that the application has no merits.

10.  Section 37ZG(1) of the Immigration Ordinance (Cap 115) provides that a torture claim “must be treated as withdrawn” if the applicant fails to return a completed Supplementary Claim Form (“SCF”).   Section 37ZG(3) provides that sufficient evidence in writing has to be provided to show, inter alia, that the SCF was not sent because of circumstances beyond his control.

11.  The question of whether sufficient evidence had been provided by an applicant for the purpose of re-opening the claim was a matter for the DOI and, on appeal, for the TCAB to determine.  It is not for the Court of First Instance to substitute its own opinion on that question.  See Re Mughal Zia Ur Rehman [2021] HKCA 1622 at [24] and Esmiralde Naguimbing Ruz [2025] HKCA 399 at [22].   

12.  In the present case, the Applicant in fact provided no evidence in support of his request to re-open his claim [24].  Further, it is plain that the Applicant’s case that he was suffering from mental illness or that he was not able to complete the SCF was rightly rejected [23].

13.  In any event, the applicant has not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the TCAB Decision was said to be not in accordance with the law, procedurally unfair or Wednesbury unreasonable.  That being the case, the application for leave for judicial review is hopeless. 

14.  All in all, I do not see any errors of law, procedural unfairness or irrationality in the TCAB Decision, despite rigorous examination and anxious scrutiny.  I would have dismissed the application in any event, regardless of whether the Applicant has adopted the correct procedure.

15.  In light of the foregoing, no extension of time is granted and the 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